Albers Mill. Co. v. Carney

• Decision Date: 02 May 1960
• Docket Number: No. 7837,7837
• Citation: 335 S.W.2d 207
• Parties: ALBERS MILLING COMPANY, a corporation, Plaintiff-Appellant, v. Marvin CARNEY and Opal Carney, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 207

335 S.W.2d 207

ALBERS MILLING COMPANY, a corporation, Plaintiff-Appellant, v. Marvin CARNEY and Opal Carney, Defendants-Respondents.

No. 7837.

Springfield Court of Appeals, Missouri.

May 2, 1960.

Robert Stemmons, Mount Vernon, for plaintiff-appellant.

Edward V. Sweeney, Monett, for defendants-respondents.

STONE, Presiding Judge.

Our present consideration of this case is upon the motion of Marvin and Opal Carney, defendants-respondents, to transfer to the Supreme Court of Missouri. Plaintiff, Albers Milling Company, instituted this suit on account for $5,024.28 'for feed, merchandise and medicine sold and delivered by plaintiff to defendants and money loaned and advanced by plaintiff to and for defendants.' Briefly stated, plaintiff's sales and advances were made in response to defendants' written 'Application for Turkey Financing' and in connection with the rearing of 10,400 poults on defendants' farm in Barry County, Missouri. In their second amended answer and counterclaim (on which the case was tried), defendants set up an agreement with plaintiff, the substance of which was that plaintiff would advance funds to purchase the poults (which plaintiff admittedly did in the sum of $7,384) and would furnish or pay for the feed and medicines needed to rear them, that defendants would provide the necessary land and labor, and that the proceeds derived from marketing the turkeys would be applied first in reimbursement of plaintiff for all feed and medicines furnished and for all advances made, with the balance of the proceeds, if any, to go to defendants but with the loss, if any, to be borne by plaintiff. It was averred that plaintiff received all monies realized from sale of the turkeys, and that, even though the proceeds of sale were insufficient to reimburse plaintiff fully, defendants were not liable for the deficiency. Defendants further alleged in their said answer and counterclaim that, but for (a) 'plaintiff's negligence and wrongful conduct' in furnishing unwholesome, impure and inferitor feed to defendants, in failing to inspect or test such feed, in failing to warn defendants of the condition of such feed, in refusing to permit defendants 'at the onset of illness in the flock * * * to sell the healthy birds remaining' but directing and requiring defendants to give 'expensive medicines' which were 'ineffective,' and in delaying the movement of the turkeys to market when they were ready for sale, and (b) 'plaintiff's breach of warranty' as to the feed furnished, defendants would have marketed their turkeys for not less than $50,000 and, 'after allowing credit for all the moneys which plaintiff claims to have been due and owing it,' would have realized a net profit of $8,196.47 for which defendants prayed judgment.

Hamstrung and hog-tied by adverse trial rulings (whether rightly or wrongly we should not and do not harzard even a judicial guess), defendants' counsel thrashed about valiantly in an effort to establish the counterclaim and, at the close of the evidence, sought an instruction on the counterclaim. But, plaintiff's motion for a directed verdict on the counterclaim, although first refused, later was given; and, pursuant to the court's direction, a verdict for plaintiff and against defendants was returned on the counterclaim. On its petition, plaintiff had a nine-man jury verdict for $3,000. In due time, defendants filed their motion for a new trial on both plaintiff's petition and defendants' counterclaim, which the court thereafter sustained 'on all grounds.' Plaintiff's appeal is from this order sustaining defendants' motion for new trial, as well as from the order of the same date overruling plaintiff's after-trial motion for entry of judgment on its petition for the full amount sought, i. e., $5,024.28, in accordance with plaintiff's motion for directed verdict at the close of the evidence. Section 510.290, RSMo 1949, 31 V.A.M.S. Since plaintiff's notice of appeal was filed in the trial court on October 5, 1959, prior to the effective date of Senate Bill No. 7 enacted by the Seventieth General Assembly in amendment of Section 477.040, RSMo 1949, 27 V.A.M.S., we may not deny the appellate jurisdiction of our Supreme Court if (as defendants assert) 'the amount in dispute, exclusive of costs, exceeds the sum of seventy-five hundred dollars.' Art. 5, Sec. 3, Const. of 1945, 2 V.A.M.S.

It may not be said in the instant case that, in determining the amount in dispute, defendants' counterclaim should be disregarded because of abandonment during trial [contrast Palmer v. Lasswell, Mo.App., 279 S.W.2d 535, 537(5)] nor because of failure to assign error with respect thereto in defendants' motion for new trial [cont...