Cannon Weiner Elevator Co. v. Boswell

• Decision Date: 02 April 1906
• Parties: CANNON WEINER ELEVATOR CO. v. BOSWELL.
• Court: Missouri Court of Appeals

93 S.W. 355

117 Mo. App. 473

CANNON WEINER ELEVATOR CO. v. BOSWELL.

Kansas City Court of Appeals. Missouri.

April 2, 1906.

1. APPEAL—RIGHT TO ALLEGE ERROR—VARIANCE—FAILURE TO OBJECT TO EVIDENCE.

Where evidence in support of a counterclaim was admitted without objection, plaintiff could not contend on appeal that recovery should not have been allowed on the counterclaim because the proof of it varied from the allegations of the pleadings.

2. CONTRACTS — MODIFICATION — CONSIDERATION.

Where the parties to a contract acted upon a modification thereof, and upon the faith of the modification abandoned the original, there was sufficient consideration for the modification.

Appeal from Circuit Court, Bates County; C. A. Denton, Judge.

Action by the Cannon Weiner Elevator Company against Ed. F. Boswell. From a judgment for defendant on his counterclaim, plaintiff appeals. Affirmed.

Francisco & Clark, for appellant. W. O. Jackson, for respondent.

ELLISON, J.

This action is on an account for $8.68, to which defendant filed a counterclaim of $68.15. Defendant recovered judgment on his counterclaim for $50. The plaintiff bought of defendant all of his timothy seed raised on his farm at $1.65 per bushel "for prime seed, subject to the established reduction for lower grade." Plaintiff paid $5 cash on the contract. In settlement for the seed, plaintiff neglected to deduct or allow for this payment of $5, and by mistake one sack of seed was weighed twice. These, with one other small item, made plaintiff's claim of $8.68. Defendant's counterclaim is based on his contention that the seed came to $68.15 more than plaintiff paid him.

It seems that defendant did not deliver the seed as promptly as contemplated and that plaintiff was fearful for that reason that it could not be applied on a contract it was filling with a party in Chicago. It was therefore agreed between them that instead of paying $1.65 per bushel, as originally contracted, defendant was to be paid $1.50 per bushel and, if plaintiff succeeded in putting in the seed to the Chicago party, defendant was to be paid 15 cents additional to make up to $1.65, the original price. The defendant's instructions clearly placed his right to recover on the counterclaim on a finding that the seed were put in on plaintiff's contract at Chicago. Plaintiff's first instruction was favorable to the defendant. It conceded defendant's right to his counterclaim if the seed were prime seed, or were accepted at Chicago. Plaintiff...