Acme Mills & Elevator Co. v. Rives

• Decision Date: 27 January 1911
• Citation: 141 Ky. 783,133 S.W. 786
• Parties: ACME MILLS & ELEVATOR CO. v. RIVES.
• Court: Kentucky Court of Appeals

133 S.W. 786

141 Ky. 783

ACME MILLS & ELEVATOR CO. v. RIVES.

Court of Appeals of Kentucky.

January 27, 1911

Appeal from Circuit Court, Christian County.

Action by the Acme Mills & Elevator Company against H. H. Rives. From a judgment for defendant, plaintiff appeals. Affirmed.

Joe McCarroll and Downer & Russell, for appellant.

Frank Rives, for appellee.

MILLER J.

By contract in writing, dated April 10, 1909, the appellee Rives sold his 1909 crop of wheat, estimated at 3,500 bushels, to the appellant at $1 per bushel, to be delivered at Fidelia Ky. and to be paid for on delivery. The appellant's mill was located at Hopkinsville, Ky. about 12 miles from Fidelia. Wheat could be hauled from Rives' farm and delivered at Fidelia at a cost of a cent per bushel; and the cost of hauling it from Rives' farm to Hopkinsville was four cents per bushel. Under the contract as written, after Rives should have delivered the wheat at Fidelia, it would then have to be transported by rail to Hopkinsville, and there unloaded and hauled across the town to appellant's mill. To avoid this extra trouble and expense of rehandling and hauling across the town of Hopkinsville, Steger, the agent of the appellant who made the contract with Rives, subsequently approached Rives with the view of changing the contract with respect to the place of delivery. Rives and Steger agree that the contract was verbally changed in this respect, but they differ as to what the change was. Rives contends that he was to abate the one cent which it would cost him to deliver his wheat at Fidelia, and to take 99 cents per bushel for his wheat delivered at the thresher; while Steger contends that the wheat was to be delivered by Rives at the mill in Hopkinsville at $1.03 per bushel, and to be paid for on delivery there. Rives' crop of wheat turned out 2,800 bushels, which he sold to the Liberty Mills at Nashville Tenn., July 22, 1909, at $1.10 per bushel, whereupon the appellant brought this suit for $525 damages for appellee's breach of the contract to deliver the wheat and for $144, the value of 1,800 sacks which appellant had furnished appellee. The sacks were returned before the answer was filed, and there is now no controversy as to them. Appellee began to thresh his wheat on July 14th, and by the next day had threshed about 800 bushels, when a delay of several days occurred by reason of an accident to the thresher. He finished threshing on Friday, July 23d, and could have delivered the wheat on the following Monday, July 26, 1909. The petition proceeds upon the theory that the wheat should have been delivered on July 15th, and that it was then worth $1.15 per bushel. Considerable evidence was heard as to the prices of wheat in July and August, 1909, and there is some conflict in that evidence. The price of wheat fluctuated considerably during the month of July. On July 15th wheat was selling for $1.16 and $1.17 per bushel, but from that time on it gradually declined until the first week in August, when it was selling for 97 cents per bushel. The evidence shows that on July 24th wheat was selling in Hopkinsville in the forenoon at $1.05 per bushel, and at the close of business on that day the price had fallen to $1 per bushel, and that it remained at the last-named price for perhaps a week. On July 15th appellant sent wagons to Rives' farm to get the 800 bushels of wheat that were then threshed, but Rives refused to deliver the wheat, and there is no claim that appellant then, or at any subsequent time, offered to take it at the thresher and pay for it. Neither is there any claim that Rives ever offered to deliver the wheat at the mill.

The pleadings presented two issues of fact only: (1) What was the contract, as modified, between the parties? (2) What was the damage to appellant if its view of the contract should be sustained by the jury? The jury returned a verdict for Rives, and the company has appealed.

1. Upon the issue as to what the contract was, the court instructed the jury that if they believed from the evidence the contract, as changed, required Rives to deliver his crop of wheat at Hopkinsville at the price of $1.03 per bushel...