Atlas Cereal Co. v. Griffin Grocery Co.

• Decision Date: 11 February 1924
• Docket Number: No. 14942.,14942.
• Parties: ATLAS CEREAL CO. v. GRIFFIN GROCERY CO.
• Court: Missouri Court of Appeals

259 S.W. 130

ATLAS CEREAL CO. v. GRIFFIN GROCERY CO.

No. 14942.

Kansas City Court of Appeals, Missouri.

February 11, 1924.

Rehearing Denied March 3, 1924.

Appeal from Circuit Court, Jackson County; Samuel A. Dew, Judge.

"Not to be officially reported."

Action by the Atlas Cereal Company against the Griffin Grocery Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. O. Thomas and R. A. Smith, both of Kansas City, for appellant.

McCune, Caldwell & Downing, of Kansas City, for respondent.

ARNOLD, J.

This is an action for damages for alleged breach of contract for the sale of feed and corn meal by plaintiff to defendant. Suit was instituted by the filing of a statement of account in a justice court in Jackson county, Mo. We are not informed of the result of the action in the justice court, but as the case was tried in the circuit court we may assume there was an appeal to the latter.

We learn from the record that plaintiff is a corporation engaged in the manufacture of cereals at Kansas City, Mo., and that defendant is a corporation and a nonresident of the state of Missouri; that on May 19, 1920, defendant purchased of plaintiff a stated amount of hominy feed and meal for delivery at Wagoner, Okl., and on May 20, 1920, it purchased a stated amount of meal for delivery at McAlester, Okl.; that on June 9, 1920, delivery of the order was tendered for McAlester, and pay therefor demanded; that on June 11, 1920, like delivery was tendered at Wagoner, Okl., and payment demanded, but in both cases payment was refused by defendant. Wherepon plaintiff procured both shipments to be sold for defendant's account, and this suit was instituted for the loss sustained by plaintiff.

The defense was based upon the ground that the shipments were not made within the times specified in the contract, and that the merchandise was in bad condition when delivery was tendered. A verdict was rendered for plaintiff in the total sum of $475. Defendant appeals.

At the outset of this appeal we are confronted by a defective abstract of the record. The record before us shows only a copy of a paper called "statement of breach of contract"; second amended answer and cross-petition of defendant; also a paper termed cross-petition; also certain exhibits introduced at the trial. There is nothing in the record proper to show plaintiff's leave to file, or the filing of, a bill of exceptions, nor is it shown that the bill of exceptions was filed. The purported bill...