Brown v. Emerson

• Decision Date: 21 February 1911
• Citation: Brown v. Emerson, 155 Mo. App. 459, 134 S.W. 1108 (Mo. App. 1911)
• Parties: BROWN v. EMERSON.
• Court: Missouri Court of Appeals

134 S.W. 1108

155 Mo. A. 459

BROWN v. EMERSON.

St. Louis Court of Appeals. Missouri.

February 21, 1911.

Rehearing Denied March 7, 1911.

1. APPEAL AND ERROR (§ 1001)—REVIEW— VERDICTS—CONCLUSIVENESS — SUBSTANTIAL EVIDENCE.

Where there is substantial evidence in support of the verdict, it will be affirmed unless there is error of law.

2. SALES (§ 364)—ACTION FOR PRICE OR VALUE —INSTRUCTIONS—CONFORMITY TO ISSUES.

In an action to recover the price of a jack, the refusal to instruct that if the plaintiff sold and delivered the jack to defendant for an agreed sum, and the defendant was to pay the freight to his place of business and deduct it from the price, the plaintiff is entitled to a verdict for the price less the freight with interest from demand, if demand is made, is error, since the instruction, besides hypothesizing plaintiff's theory of the case, requires the finding of all the facts essential to his right of recovery.

3. TRIAL (§ 250) — INSTRUCTIONS — APPLICABILITY TO ISSUES AND EVIDENCE.

Where the only issue in an action was whether the defendant purchased a jack of the plaintiff, and there is evidence that it was of some value, an instruction that plaintiff was entitled to a verdict modified so as to the include the conditions that the animal was without any value at the time of the alleged sale, and that the plaintiff made no misrepresentation as to its qualities, is erroneous as being inapplicable to the issues and evidence.

4. PLEADING (§ 93)—ANSWER—INCONSISTENT DEFENSES—DENIAL OF CONTRACTS—MISREPRESENTATIONS.

A party cannot traverse the allegations of a pleading and at the same time avoid the action on some other ground, and hence the defendant, in an action for the price of a jack alleged to have been purchased by him, cannot deny the purchase and at the same time admit that he purchased the animal and attempt an avoidance on the ground of a breach of warranty or a misrepresentation respecting the animal, since the defenses are inconsistent.

5. APPEAL AND ERROR (§ 215)—RIGHT OF REVIEW —OBJECTIONS.

Where inconsistent instructions submitted for the defendant are excepted to at the time, the mere exception is sufficient to authorize their review, though the words "objected to" do not appear with reference to the instructions.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Action by M. D. Brown against Luke M. Emerson. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Joe H. Cupp and Tapley & Fitzgerrell, for appellant. R. L. Motley, John W. Matson, and T. B. McGinnis, for respondent.

NORTONI, J.

This is a suit for the purchase price of a jack. The finding and judgment were for defendant, and plaintiff prosecutes the appeal.

Defendant is a breeder and trader in jacks on his farm in Pike county. Plaintiff owned a jack in the state of Arkansas which he desired to dispose of and sought out defendant for the purpose. Plaintiff's evidence tends to prove that he described the jack to defendant as of about 14 hands high, high-headed, quick, and a good performer, but aged, and on this description alone defendant agreed to pay him $250 for the animal f. o. b. Bowling Green, Mo. According to plaintiff, it was agreed defendant should pay the freight on the jack, deduct the same from the purchase price, and pay the balance to him. Plaintiff caused the jack to be shipped from Arkansas to defendant, whereupon defendant paid the freight, $33.30, and took the jack to his farm, but refused to pay therefor because, as asserted, he had not purchased the animal at all. There is no controversy about the fact of plaintiff's having shipped the jack to defendant, and that defendant paid the freight and took it to his farm, but defendant insists that instead of purchasing the jack from plaintiff he only agreed to take it to resell on commission, unless he concluded to buy it after inspection.

Defendant concedes plaintiff spoke of the jack as an aged animal in their conversation which was relied upon by plaintiff as the contract of purchase, but insists that he at no time agreed to buy it unless he chose to do so after inspection. Defendant's testimony tends to prove that he agreed to take the jack upon its being shipped to him, pay the freight thereon, and endeavor to sell it thereafter for a commission, which commission was to be any amount he might receive over and above the $250, the amount plaintiff hoped to realize less the freight thereon. Defendant says, too, that he agreed with plaintiff, if upon inspecting the jack on its arrival he concluded it was worth the money, to purchase it, but did not agree to do so until after inspecting the animal and determining its qualities and...