Alvin Fruit & Truck Association v. Hartman

• Decision Date: 14 December 1909
• Citation: 123 S.W. 957,146 Mo.App. 155
• Parties: ALVIN FRUIT & TRUCK ASSOCIATION, Respondent, v. WILLIAM HARTMAN, Appellant
• Court: Missouri Court of Appeals

123 S.W. 957

146 Mo.App. 155

ALVIN FRUIT & TRUCK ASSOCIATION, Respondent, v. WILLIAM HARTMAN, Appellant

Court of Appeals of Missouri, St. Louis

December 14, 1909

[Copyrighted Material Omitted]

Appeal from St. Louis City Circuit Court.--Hon. Robt. M. Foster Judge.

REVERSED AND REMANDED.

The following instructions were given to the jury, the italics indicating the court's modifications. For plaintiff:

"1. The court instructs the jury that if you find and believe from the evidence in this case that on or about the 27th day of March, A. D. 1907, at the town of Alvin, in the State of Texas, the plaintiff, Alvin Fruit & Truck Association, sold and delivered to the defendant, William Hartman, at said Alvin, Texas, a certain carload of strawberries, being referred to in the evidence as car C-47, containing 521 crates of strawberries at and for the price and sum of $ 1302.50, to be paid in cash upon the delivery of said berries; and if you further find that said strawberries at the time they were delivered to defendant at said Alvin Texas, if you find they were so delivered, were then and there at that time in good and merchantable and marketable condition, and if you further find that the price charged for said strawberries at the time same were sold and delivered to defendant, if they were so sold and delivered, was reasonable; and if, having found the aforesaid statements to be true as of fact, you further find that plaintiff demanded payment of said $ 1302.50 from defendant on or about March 28, 1907, and that defendant did refuse at that time and has to this day refused and neglected to pay the same or any part thereof, you will find your verdict against defendant and in favor of plaintiff on plaintiff's petition for the sum of $ 1302.50, together with interest thereon at the rate of six per cent per annum since March 28, 1907, unless you find the facts as stated in instruction number 8.

"2. The court instructs the jury that if you find and believe from the evidence in this case that the plaintiff on or about March 27, 1907, sold and delivered to the defendant at Alvin Texas, the car of strawberries, mentioned in plaintiff's petition and in the evidence as car C-47, and that said car was on the same day forwarded and shipped from said Alvin, billed to the defendant William Hartman, at St. Louis, Missouri, by way of the Wells-Fargo Express Company, all according to shipping, billing and routing instructions, given by said defendant or his agent, if you find that said defendant or his agent gave such shipping, billing and routing instructions, then the court instructs you that said express company was the agent of the defendant Hartman, in transporting said car of strawberries, and the plaintiff was in no way liable or responsible for any loss or injury to or deterioration in value in said strawberries, if any, which may have been occasioned by any improper handling or delays in transit by said express company, if you find and believe from the evidence that there was any such improper handling or delays in transit and if you find and believe from the evidence that said berries were injured or caused to deteriorate in value thereby.

"3. The court instructs the jury that if you find and believe from the evidence in this case that in the purchase of the car of strawberries mentioned in plaintiff's petition, and referred to in the evidence as car C-47, the defendant was represented at Alvin, Texas, by J. H. McKnight, as defendant's agent, and if you find and believe from the evidence that while the strawberries which were shipped in said car C-47 were being inspected and packed and loaded into said car by defendant, that said McKnight had unrestrained access to the same and full opportunity to examine and inspect said strawberries and the operations of packing and loading the same, and that he knew the variety and quality and trade classifications of the strawberries that went into said car; and if you further find that said McKnight as such agent for defendant, thereafter accepted said carload of strawberries and gave instructions for the shipping, billing and routing of the same to defendant, then and under such facts, if you find and believe the same to be true, the court instructs you that the defendant is estopped and forbidden to deny that said strawberries were of the variety, quality and trade classification which he purchased, and that the defendant is bound under the law to pay to plaintiff the purchase price for same, and if you find and believe said facts to be true, as above set out, then you will find your verdict in favor of plaintiff on the plaintiff's petition without regard to what the condition of said berries was when they arrived in St. Louis unless you find the facts to be as stated in instruction number 8.

"4. The court instructs the jury that if you find and believe from the evidence in this case that in the purchase of the car of strawberries, mentioned in the second count of defendant's counterclaim and therein alleged to have been purchased from plaintiff on or about March 25, 1907, and being the car referred to in the evidence as car number 104, that the defendant was represented in the purchase of said car by J. H. McKnight, as defendant's agent at Alvin, Texas, and if you find and believe from the evidence that while the strawberries which were shipped in said car number 104 were being inspected and packed and loaded into said car by defendant, that said McKnight had unrestrained access to the same and full opportunity to examine and inspect said berries and the operations of packing and loading the same, and that he knew the variety and quality and trade classifications of the strawberries that went into said car; and if you further find that said McKnight, as such agent for defendant, thereafter and after said car had been shipped by plaintiff, and whilst the same was en route to Kansas City, purchased said car of strawberries for the defendant Hartman and ordered the same diverted en route from Kansas City to the defendant at St. Louis, Missouri, then and in such case, if you find and believe the same to be true the court instructs you that the defendant is estopped and forbidden to deny that said strawberries were of the variety, quality and trade classification which he purchased and that the defendant is not entitled under the law to recover any sum from plaintiff on account thereof, and if you find and believe said facts to be true, as above set out, then you will find your verdict in favor of plaintiff and against the defendant on said second count of the defendant's counterclaim without regard to what the condition of said berries was when they arrived in St. Louis, unless you find the facts to be as stated in instruction number 8."

For defendant:

"7. The court instructs the jury that if they find from the evidence that in March, 1907, the plaintiff Alvin Fruit & Truck Association was engaged in the business of growing fruit and produce in Texas and selling same to the trade, and that plaintiff was aware that defendant William Hartman was then engaged in the fruit and produce business in St. Louis, Missouri, and was buying the berries in controversy for the St. Louis market, then there was an implied warranty by plaintiff that the berries which plaintiff sold defendant were merchantable and suitable to the St. Louis market; and if the jury further find that defendant Hartman ordered from plaintiff two cars of strawberries of the quality and kind known to the trade as Fancy Klondikes, then there was an implied warranty by plaintiff that the goods sold in response to said order were Fancy Klondikes, or were such as would reasonably answer to such description.

"8. The court instructs the jury that if they find the defendant did not have a reasonable opportunity to inspect said strawberries, and did not inspect them, before buying same, or that said berries were so packed and crated and loaded on cars by plaintiff as to deprive defendant of a reasonable opportunity for inspecting same; and if the jury further find that plaintiff represented said strawberries to be Fancy Klondikes, and fit for shipment to St. Louis, and that defendant bought same relying upon such representations; or that plaintiff knew when it sold said strawberries that defendant was a fruit and produce merchant at St. Louis and was buying said berries for the St. Louis market; and if the jury further find that said strawberries were not fancy Klondikes, or such as would reasonably answer such description, or were damaged or unsound, or were not merchantable or suited to the St. Louis market, or that said berries were not in condition to stand transportation to St. Louis, Mo.; or to arrive there in a sound and salable condition, and did not so arrive, and that thereby defendant was damaged, then defendant is entitled to recover on his counterclaim for the damage, if any, so sustained by him.

9. The court instructs the jury that if they find in favor of defendant on his first counterclaim, with respect to the car bought on March 27, 1907, the agreed price for which was $ 1302.50, none of which was paid by defendant, they will allow defendant as damages on said first counterclaim such sum, not exceeding $ 708.50, as they find from the evidence will reimburse defendant for the amount, if any, paid by defendant for express on said car amounting to $ 265.00 and will also allow defendant the difference, if any, in the value of the berries in said car as they actually were on arrival in St. Louis, and what they would have been worth had they been Fancy Klondikes, or such as would reasonably answer such description, and merchantable and suited to the St. Louis market.

"10. The court instructs the jury that if they find in favor of ...