Brim v. Alexander, No. 11993.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtTrimble
Citation186 S.W. 544
Decision Date22 May 1916
Docket NumberNo. 11993.
PartiesBRIM et al. v. ALEXANDER.
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"Plaintiffs rescinded their contract for all the potatoes described and mentioned in plaintiffs' petition, and instructed defendant to cancel their order, and refused to accept any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 The only issue in the case was whether or not plaintiffs rescinded the contract.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

186 S.W. 545

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...

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3 practice notes
  • Boillot v. Income Guar. Co., No. 19139.
    • United States
    • Court of Appeal of Missouri (US)
    • May 23, 1938
    ...162; Kramer v. Britt Printing & Publishing Co., 263 S.W. 866; Parris v. Deering Southwestern Ry. Co., 227 S.W. 1071; Brim v. Alexander, 186 S.W. 544; Steddings v. Dobbins, 171 S.W. 979, 185 Mo. App. 43. (11) (a) The power to take judicial notice is to be exercised with caution, and due care......
  • Boillot v. Income Guar. Co., No. 19236.
    • United States
    • Court of Appeal of Missouri (US)
    • May 23, 1938
    ...108; Kramer v. Britt Printing & Publishing Co., 263 S.W. 866; Parris v. Deering Southwestern Ry. Co., 227 S.W. 1071; Brim v. Alexander, 186 S.W. 544; Steddings v. Dobbins, 185 Mo. App. 43, 171 S.W. 979; (11) (a) The power to take judicial notice is to be exercised with caution, and due care......
  • Rosenblatt v. Winstanley, No. 12061.
    • United States
    • Court of Appeal of Missouri (US)
    • May 22, 1916
    ...New York, nor proof that the goods were sold at an auction sale held under fair conditions. All plaintiffs (upon whom devolved the burden 186 S.W. 544 of proof of the depreciation) tell us in their evidence is that when the goods reached New York, they turned them over to an auction house a......
3 cases
  • Boillot v. Income Guar. Co., No. 19139.
    • United States
    • Court of Appeal of Missouri (US)
    • May 23, 1938
    ...162; Kramer v. Britt Printing & Publishing Co., 263 S.W. 866; Parris v. Deering Southwestern Ry. Co., 227 S.W. 1071; Brim v. Alexander, 186 S.W. 544; Steddings v. Dobbins, 171 S.W. 979, 185 Mo. App. 43. (11) (a) The power to take judicial notice is to be exercised with caution, and due care......
  • Boillot v. Income Guar. Co., No. 19236.
    • United States
    • Court of Appeal of Missouri (US)
    • May 23, 1938
    ...108; Kramer v. Britt Printing & Publishing Co., 263 S.W. 866; Parris v. Deering Southwestern Ry. Co., 227 S.W. 1071; Brim v. Alexander, 186 S.W. 544; Steddings v. Dobbins, 185 Mo. App. 43, 171 S.W. 979; (11) (a) The power to take judicial notice is to be exercised with caution, and due care......
  • Rosenblatt v. Winstanley, No. 12061.
    • United States
    • Court of Appeal of Missouri (US)
    • May 22, 1916
    ...New York, nor proof that the goods were sold at an auction sale held under fair conditions. All plaintiffs (upon whom devolved the burden 186 S.W. 544 of proof of the depreciation) tell us in their evidence is that when the goods reached New York, they turned them over to an auction house a......

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