Colorado Milling & El. Co. v. Rolla Wholesale Groc. Co.

• Decision Date: 01 March 1937
• Docket Number: No. 5722.,5722.
• Citation: 102 S.W.2d 681
• Court: Missouri Court of Appeals
• Parties: COLORADO MILLING & ELEVATOR CO. v. ROLLA WHOLESALE GROCERY CO.

102 S.W.2d 681

COLORADO MILLING & ELEVATOR CO. v. ROLLA WHOLESALE GROCERY CO.

No. 5722.

Springfield Court of Appeals. Missouri.

March 1, 1937.

Appeal from Circuit Court, Pulaski County; William E. Barton, Judge.

"Not to be published in State Reports."

Suit by the Colorado Milling & Elevator Company against the Rolla Wholesale Grocery Company. From judgment sustaining defendant's demurrer to plaintiff's testimony, the plaintiff appeals.

Affirmed.

Earl E. Roberts, of Steelville, for appellant.

Breuer & Northern, of Rolla, for respondent.

FULBRIGHT, Judge.

This is an action for loss alleged to have been sustained by plaintiff by reason of the failure and refusal of defendant to accept and pay for a carload of beans alleged to have been purchased from plaintiff by the defendant for the sum of $2,205.20. The answer was a general denial and other defenses were pleaded.

The suit was originally filed in the circuit court of Phelps county, Mo., where plaintiff moved for a change of venue, which was granted to Pulaski county. At the first trial, Hon. J. H. Bowron presided and sustained a demurrer at the close of plaintiff's case. Plaintiff's motion for a new trial was granted at the next term of court. The case came on for its second trial before Hon. Wm. E. Barton. At the close of plaintiff's case defendant filed a demurrer to the testimony which the court sustained, and plaintiff appeals.

Plaintiff states that this appeal is being prosecuted on the ground that the trial court erred in sustaining defendant's demurrer at the close of the plaintiff's case.

In presenting its case, as disclosed by the abstract, plaintiff placed on the witness stand several witnesses and numerous exhibits were offered, most of them being admitted. The testimony of the witnesses is set forth in narrative of counsel preparing the abstract, not in narrative of the witnesses. He says in the abstract, "these witnesses testified in effect as follows," then proceeds to give his version of the testimony, using his own language, not the language or narrative of the witnesses. Although numerous references are made to the many exhibits admitted in evidence, only one is set forth in the record, counsel stating his conclusion as to their content and effect. This is not sufficient. The entire evidence must be set out so that this court may, for itself, determine its materiality and probative force. We cannot hold that such presentation of the evidence as appears in plaintiff's abstract complies with section 1028, R.S.Mo. 1929 (Mo.St.Ann. § 1028, p. 1310), or rules 15 and 16 of this court; neither does it measure up to the rule laid down in the cases of Euler v. State Highway Commission, 227 Mo.App. 755, 55 S.W.(2d) 719 and Sinclair v. Missouri, K. & T. Ry. Co. (Mo.App.) 253 S.W. 380. If given in narrative form, testimony must...