Bailey-Ball-Pumphrey Co. v. Branham

• Decision Date: 14 January 1922
• Docket Number: No. 3011.,3011.
• Citation: 236 S.W. 379
• Parties: BAILEY-BALL-PUMPHREY CO. v. BRANHAM.
• Court: Missouri Court of Appeals

236 S.W. 379

BAILEY-BALL-PUMPHREY CO. v. BRANHAM.

No. 3011.

Springfield Court of Appeals. Missouri.

January 14, 1922.

Appeal from Circuit Court, New Madrid County; Sterling E. McCarty, Judge.

Action by the Bailey-Ball-Punaphrey Company, a corporation, against A. Branham. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

N. C. Hawkins, of Caruthersville, for appellant.

COX, P. J.

Plaintiff is doing business in Memphis, Tenn., as a commission broker, and handles cotton on a commission. In February, 1920, defendant shipped plaintiff three bales of cotton, to be sold on commission, on which plaintiff advanced to defendant $364.80 and paid the freight, storage, and insurance amounting to $43.48. The cotton was not sold, and plaintiff demanded that defendant reimburse it for what it had paid and interest. Defendant refused payment, and on December 20, 1920, this suit was filed to recover the amount advanced and expenses paid, with interest. Upon trial a verdict and judgment went in defendant's favor, and plaintiff appealed.

The cotton was received by plaintiff in February, 1920, and was not sold when this suit was filed December 20th following. Plaintiff demanded reimbursement from defendant before filing suit, but at what date does not appear.

Plaintiff's evidence was to the effect that it had done all it could to sell the cotton, and the only reason it was not sold was that no buyer could be found. It also showed a constantly declining market through 1920, and at the time of the trial the cotton was worth about 6 cents per pound, while plaintiff had advanced to defendant 20 cents per pound. This evidence of plaintiff was not contradicted, except that some evidence on part of defendant showed no material decline in the market until September, 1920 The only defense pleaded was that plaintiff had sold or could have sold the cotton in a reasonable time for more than enough to have repaid plaintiff, and therefore it was paid.

On behalf of defendant the court instructed the jury that—

"It was the duty of plaintiff to sell the cotton in a reasonable time, and if plaintiff within a reasonable time could have sold said cotton for a sum equal to or greater than the amount advanced to defendant thereon, but failed to do so without any instructions from the defendant, then the court instructs you the plaintiff should be charged with the price they could have obtained and pay their debt out of the same, and that, if the same was sufficient to pay plaintiff the amount advanced to the defendant, or more, then your finding should be for the defendant."

This instruction is clearly erroneous, for two reasons:

First: It proceeds upon the theory that, if plaintiff could have sold the cotton within a reasonable time for enough to have reimbursed it for the debt...