Birney v. Sharp

• Decision Date: 30 April 1883
• Citation: 78 Mo. 73
• Parties: BIRNEY v. SHARP, Appellant.
• Court: Missouri Supreme Court

78 Mo. 73

BIRNEY

v.SHARP, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Schuyler Circuit Court.--HON. ANDREW ELLISON, Judge.

AFFIRMED.

J. M. Knott and James Raley for appellant.

Higbee & Shelton for respondent.

RAY, J.

The petition charges that, in May, 1877, plaintiff contracted with defendant for the sale of, and sold to defendant, sixty merchantable fat hogs, to be delivered in Queen City, Schuyler county, on any day from the 20th day of November next thereafter to the 10th day of December, inclusive, at the option of the defendant--he to notify plaintiff on which of said days, from the 20th day of November to the 10th day of December, to deliver said hogs--said hogs to average not less than 250 pounds, for which defendant agreed to pay plaintiff five cents per pound on delivery as aforesaid; and plaintiff says that defendant, then and there paid plaintiff $5 on said contract, as earnest money and in part payment, which was accepted by plaintiff accordingly; that plaintiff at all times during said period between the 20th day of November and the 10th day of December, inclusive, was ready and willing to deliver said hogs to defendant pursuant to said contract, and during said period plaintiff requested defendant to inform him on what day he would receive said hogs, but defendant refused to name any day for such delivery, and failed to notify plaintiff when to deliver the same; and that, during said period, to-wit, on the 10th day of December, 1877, during usual business hours, and before sunset of that day, plaintiff tendered to defendant and offered to deliver to him, in Queen City aforesaid, sixty merchantable fat hogs averaging 250 pounds, but defendant refused to receive them; that said hogs then weighed 15,821 pounds, and the sum then due plaintiff therefor was $786.05; that said hogs were then worth in the market only three and a half cents per pound, at which price he sold said hogs, receiving therefor $553.73. Wherefore plaintiff says he is damaged in the sum of $233.32 by the default of defendant, in failing to receive and pay for said hogs, for which amount, with interest and costs, he asks judgment.

The second count of said petition, in all respects, set out the same transaction, or cause of action, except that the second count contained the following averment, the first part of which is not included in the first count: “That by the custom of the country in contracts for the sale and future delivery of hogs and other live stock, the 10th day of December, 1877, was included as one of the days for the delivery of said hogs, as defendant well knew, and as considered at the time of making said contract, and in fact, according to the understanding and intention of the plaintiff and defendant said day was so included.”

The answer of defendant is: 1st, A general denial; 2nd, Then charges that in May, 1877, plaintiff sold and agreed to deliver to defendant, and defendant purchased and agreed to receive and pay for one car load of smooth, straight, merchantable fat hogs, to average not less than 250 pounds, for the price of five cents per pound, to be paid for on delivery at Queen City at any time between the 20th day of November and the 10th day of December following, at the option of plaintiff, and defendant then paid plaintiff $5 on the contract to bind the bargain, which was received accordingly. And defendant says that he was...