Belt Seed Co. v. Mitchelhill Seed Co.

• Citation: 153 S.W.2d 106,236 Mo.App. 142
• Parties: THE BELT SEED COMPANY, A CORPORATION, RESPONDENT, v. MITCHELHILL SEED COMPANY, A CORPORATION, APPELLANT
• Decision Date: 16 June 1941
• Court: Court of Appeals of Kansas

153 S.W.2d 106

236 Mo.App. 142

THE BELT SEED COMPANY, A CORPORATION, RESPONDENT, v. MITCHELHILL SEED COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, Kansas City

June 16, 1941

Appeal from Circuit Court of Buchanan County.--Hon. Emmett J Crouse, Judge.

REVERSED.

Judgment reversed.

Culver Phillip, Kaufmann & Smith for appellant.

(1) The court erred in refusing defendant's Instruction No. 2 asked at the close of all of the evidence directing a verdict for defendant. Masdon v. Stone, 66 S.W.2d 582; Weaver v. Benton-Bellefontaine Ry. Co., 60 Mo.App 208; Gilmore v. Modern Brotherhood of America, 186 Mo.App. 445; Skirvin v. McKamey, 237 S.W. 858; State ex rel. Witte Hardware Co. v. McElhinney, 100 S.W.2d 36. (2) The court erred in giving plaintiff's Instruction No. A because: (1) It restricted the issues made by the pleadings. State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722; Schumacher v. Breweries Co., 247 Mo. 141, 152 S.W. 13; Bank v. Murdock, 62 Mo. 73. (2) It withdrew from the jury the issue of waiver on the part of the plaintiff raised by the answer. 67 C. J., p. 289; Lamar Water & Light Co. v. City of Lamar, 140 Mo. 145, 39 S.W. 768; Henderson v. Koenig, 192 Mo. 690, 91 S.W. 88; Hayes v. Manning, 263 Mo. 1, 172 S.W. 897; Murmann v. Wissler, 116 Mo.App. 397, 92 S.W. 355. (3) The court erred in admitting incompetent testimony on behalf of plaintiff. Jordan v. Daniels, 27 S.W.2d 1052; McClurg v. Whitney, 82 Mo.App. 625; Davidson v. Knights of Pythias, 22 Mo.App. 263; State ex rel. Met. Life Ins. Co. v. Shain, 121 S.W.2d 789; Spruce Co. v. Mays, 62 S.W.2d 824; Hunter v. Waterloo Gasoline Engine Co. et al., 237 S.W. 819; Miller v. Great American Ins. Co. of New York, 61 S.W.2d 205; Cuneo et al. v. U. S. Casualty Co., 125 S.W.2d 908. (4) The court erred in excluding competent evidence which was material to defendant's case. 17 C. J. S., par. 297, p. 707, par. 310, p. 707, and cases cited under point 2, subsection 2.

Strop & Strop for respondent.

(1) (a) Respondent pleaded and proved an express warranty. 55 C. J sec. 682, pp. 674-675; International Shoe Co. v. Lipshitz, 72 S.W.2d 122, 125. (b) The trial court correctly submitted the case to the jury on the theory that an express warranty existed, since the contract was formed exclusively by writings from which the court determined the existence of the warranty and its terms. 55 C. J., sec. 847, p. 858; 24 R. C. L., sec. 438, p. 165; Davis v. Cramer, 188 Mo.App. 718, 725, 176 S.W. 468, 470; James & Sons v. Marion Fruit Jar & Bottle Co., 69 Mo.App. 207, 211; Union Service Co. v. Drug Co., 148 Mo.App. 327, 337, 128 S.W. 7, 10; Eagle Mill Co. v. Craven, 76 Mo.App. 458, 462; Falls Wire Manufacturing Co. v. John J. Broderick, 12 Mo.App. 378, 385; 13 C. J., sec. 1004, pp. 788-789; 100 A. L. R. 971. (2) (a) The existence and terms of the express warranty having been established solely by writings, the existence of the warranty and the construction of its terms were for the court. Authorities, supra, 1 (b). (b) The nonwarranty clause was properly excluded by the trial court since the warranty involved was express and since the nonwarranty clause formed no part of the contract and could not affect it. Authorities: See respondent's original brief, point (2) 2 (a) and (b). (c) The error, if any, in the trial court's exclusion of nonwarranty clause was harmless and not prejudicial, since it was later read to the jury by appellant's counsel. Authorities: See respondent's original brief, pages 44 to 50, inclusive; 5 C. J. S., sec. 1753, p. 1060; Steffens v. Southwestern Bell Tel. Co., 56 S.W.2d 47, 48; Foman v. Liberty Life Ins. Co., 51 S.W.2d 212, 214. (3) The trial court correctly gave respondent's Instruction A, and correctly refused appellant's Instruction 3. (4) The court was correct in not considering any custom of seed trade not to warrant, and not considering seed customs and the peculiar nature of the commodity because appellant's answer did not plead such customs and because there is no evidence in the record concerning any such matters. (5) The court correctly ruled that the cases cited by appellant were not in point since none of them involved an express warranty, such as exists in the case at bar, but involved instead only implied warranties. 16 A. L. R. 859 et seq.; 32 A. L. R. 1241 et seq.; 117 A. L. R. 470 et seq. (5) The trial court did not err in refusing defendant's Instruction No. 2, asked at the close of all the evidence, directing a verdict for the defendant, for the reason that the record discloses sufficient testimony to warrant the submission of the case to the jury, especially since the plaintiff's evidence must be accepted as true, and plaintiff is entitled to all reasonable inferences to be drawn therefrom. Perdue v. Montgomery Ward & Co., 341 Mo. 252, 107 S.W.2d 12, 14; Stevens v. Meadows et al., 340 Mo. 252, 255, 100 S.W.2d 281, 283; Bennett v. Royal Union Mutual Life Ins. Co. et al., 232 Mo.App. 1027, 112 S.W.2d 134, 140; John v. Aetna Life Ins. Co. of Hartford, Conn. (Mo. App.), 100 S.W.2d 936, 939; Timmons v. Kurn et al., 231 Mo.App. 421, 100 S.W.2d 952, 957; Robertson v. Atchison, T. & S. F. Co. (Mo. App.), 105 S.W.2d 996, 998; Millhouser v. Kansas City Public Service Co., 71 S.W.2d 160, 162. (7) 1. Defendant cannot complain of plaintiff's Instruction "A," which imposed a standard of 80 per cent and no less, with regard to the germination of the seed, because defendant joined in the error, if any, by asking and receiving Instruction No. 5 from the court; also in arguing to the jury that the defendant agreed to ship, to the plaintiff, seed germinating 80 per cent. Hampe v. Versen, 32 S.W.2d 793, 795, 796, 797; Hazell v. The Bank of Tipton, 95 Mo. 60, 66, 8 S.W. 173, 174; Thorpe v. Mo. P. Ry. Co., 89 Mo. 650, 666, 2 S.W. 3, 9; Olfermann v. Union Depot Ry. Co., 125 Mo. 408, 415, 416, 28 S.W. 742, 744; Harper v. Morse, 114 Mo. 317, 321, 21 S.W. 517, 518; Phelps v. City of Salisbury, 161 Mo. 1, 14, 61 S.W. 582; Christian v. Connecticut Mut. Life Ins. Co., 143 Mo. 460, 467, 45 S.W. 268. 2. Plaintiff's Instruction "A" was correct in imposing a standard of 80 per cent and no less, with regard to the germination of the seed because: (a) Plaintiff's action is for a breach of contract which was formed by the exchange of letters and telegrams between the plaintiff and defendant and under these facts the existence of the contract and the construction of its terms is solely a question of law for the court. James & Sons v. Marion Fruit Jar & Bottle Co., 69 Mo.App. 207, 211; Union Service Co. v. Drug Co., 148 Mo.App. 327, 337, 128 S.W. 7, 10; Eagle Mill Co. v. Craven, 76 Mo.App. 458, 462; Falls Wire Mfg. Co. v. John J. Broderick, 12 Mo.App. 378, 385; 13 C. J., sec. 1004, pp. 788-789; 100 A. L. R. 971, 972. (b) Small type printed matter in letterheads, billheads or upon the bottom or margin of paper upon which a typewritten letter is written may not be regarded as a part of the contract because in such a case a plain meaning expressed in writing in the contract cannot be varied or added to or contradicted by such extrinsic matters, especially where the contract is expressed in clear and explicit terms, and especially where the typewritten matter does not refer to the printed matter. 12 Am. Jur. 245, p. 780; Annotation L.R.A. 1916D, 1072; Summers v. Hibbard, 153 Ill. 102, 46 Am. St. Rep. 872, 873, 874, 38 N.E. 899; R. J. Menz Lbr. Co. v. E. J. McNeeley & Co., 58 Wash. 223, 108 P. 621, 28 L.R.A. (N. S.) 1007, 1011; Sturm v. Boker, 150 U.S. 312, 14 S.Ct. 99, 37 L.Ed. 1093, 1099; B. F. Sturtevant Co. v. Fire Proofing Film Co., 216 N.Y. 199, 110 N.E. 440, L.R.A. 1916D, 1069, 1071; Olson v. Wabash Coal Co., 126 Ill.App. 253; Constantion v. Mercedes Berry Co., 39 P.2d 496; Ellis v. Stone, 21 N. M. 730, 158 P. 480, L.R.A. 1916F, 1228, 1233; Cohen v. Wolworth, 95 Misc. 479, 158 N.Y.S. 1081; Denivelle Co. v. Leonard Keil, Inc., 140 N.Y.S. 150, L.R.A. 1916D, 1072; Millhiser v. Erdmann, 103 N.C. 27, 9 S.E. 583; 6 R. C. L. 848, par. 237; 23 R. C. L., p. 1329, par. 149; 13 C. J., pp. 536, 537, par. 498. (8) The court did not err in refusing to permit the defendant to offer in evidence the remaining portions of exhibits, part of which were received into evidence on behalf of the plaintiff because the portions which the court refused in evidence formed no part of the contract. Further, the defendant was not prejudiced since it read to the jury, with the court's permission, part of the matter which the defendant contends was erroneously excluded at other times by the court. The other matter which defendant contends was erroneously excluded also was no part of the contract, and furthermore, it pertained solely to matters not at issue in the case. Authorities, Point (2) (a) and (b). App. Rec. 160. (9) Plaintiff's Instruction "A" was correct in withdrawing from the jury the issue of waiver because: (a) If a seller in professed whole performance of a contract of sale delivers personal property which fails to meet the contractual requirements, he is guilty of a breach of contract which gives the buyer the right to pursue one of two courses: 1. Either to rescind the contract; or 2. accept the property as partial performance and claim reimbursement from the seller for the loss sustained in consequence of the breach. Travers Co. v. Goldman, 255 S.W. 923, 924; International Shoe Co. v. Lipschitz, 72 S.W.2d 122, 125; Phelps Manufacturing Co. v. Burgert, 115 S.W.2d 107; Simrall v. American Multigraph Sales Co., 172 Mo.App. 384, 390, 158 S.W. 437, 439; Redlands Orange Growers' Ass'n v. Gorman, 161 Mo. 203, 208-209, 61 S.W. 820; 55 C. J. 812, sec. 794; A. Franck-Philipson & Co. v. Hanna & Young Handle Co., 200 S.W. 718, 722, 723; Walls v. Tinsley, 187 Mo.App. 462, 466, 467, 173 S.W. 19, 21; Eversole...