Brim v. Alexander

• Decision Date: 22 May 1916
• Docket Number: No. 11993.,11993.
• Citation: 186 S.W. 544
• Parties: BRIM et al. v. ALEXANDER.
• Court: Missouri Court of Appeals

186 S.W. 544

BRIM et al. v. ALEXANDER.

No. 11993.

Kansas City Court of Appeals. Missouri.

May 22, 1916.

Appeal from Circuit Court, Pettis County; H. B. Shain, Judge.

"Not to be officially reported."

Action by W. T. Brim and another against John Alexander. Judgment for plaintiffs, and defendant appeals. Affirmed.

W. D. Steele, of Sedalia, for appellant. E. C. White and Hall, Robertson & O'Bannon, all of Sedalia, for respondents.

TRIMBLE, J.

Plaintiffs obtained a written contract from defendant wherein the latter agreed to sell and deliver 2,000 bushels of potatoes. They were not delivered, and plaintiffs, buying elsewhere, were compelled to pay a greater price, to which potatoes advanced after the making of the contract. This suit was brought to recover the damages sustained by the alleged breach of said contract on defendant's part. The case was here once before, and is reported in 185 Mo. App. 599, 172 S. W. 480. That time the plaintiffs appealed from an order refusing to set aside an involuntary nonsuit with leave. The case was remanded, with directions to submit the issues to a jury. In accordance with that opinion the case was again tried, and the result was a verdict in plaintiffs' favor, assessing their damages at $200. From the judgment rendered therein defendant has appealed. At this second trial the answer was a general denial, coupled with a defense that:

"Plaintiffs rescinded their contract for all the potatoes described and mentioned in plaintiffs' petition, and instructed defendant to cancel their order, and refused to accept any of said potatoes when defendant offered to deliver same to plaintiffs."

The existence of the contract was conceded in the evidence, as was also the fact that the potatoes were never delivered. The only issue in the case was whether or not plaintiffs rescinded the contract. It was executed on October 23, 1911. Plaintiffs' evidence was to the effect that on November 14, 1911, defendant told them he could not deliver the potatoes because the price had gone so high it would break him up to fill the orders he had; that thereafter they had to buy potatoes at an advanced price, and did so. Defendant's evidence was to the effect that, as the potatoes had to be bought in and shipped from Minnesota, from three to five weeks was a reasonable time in which to deliver them; that on November 14, 1911, the plaintiffs demanded their potatoes, and that he told them he had one car ready for delivery, and would have the others in three or four days, but that plaintiffs demanded that he deliver all of the potatoes or none, and told him not to ship them as they would not receive them, and for this reason he did not deliver said potatoes. The plaintiffs in rebuttal denied that any such conversation took place, or that they ever told him they would not take the potatoes. Plaintiffs' suit was brought on December 30, 1911. Consequently, the question of a reasonable time in which to deliver the potatoes was not in the case. The only question was whether defendant refused to fulfill his contract as plaintiffs say he refused, or whether plaintiffs canceled the contract as defendant claims they did. The determination of that question fixed the rights of the parties without regard to any other question aside from the amount of the...