Cousins v. Bowling

• Decision Date: 14 April 1903
• Citation: 74 S.W. 168,100 Mo. App. 452
• Parties: COUSINS et al. v. BOWLING.
• Court: Missouri Court of Appeals

74 S.W. 168

100 Mo. App. 452

COUSINS et al. v. BOWLING.

Court of Appeals at St. Louis, Missouri.

April 14, 1903.

SALE—TIME OF DAY FOR DELIVERY—RELEASE FROM OBLIGATION—ESTOPPEL—PAYMENT— RECITAL IN MEMORANDUM OF CONTRACT.

1. In the case of a nonmercantile contract for sale of hogs to be delivered on a certain day, whether an offer at 8:30 p. m. to receive them was made at a reasonable hour, and at a time when it was reasonable that they could be safely driven from one pen to another to be weighed, is, in the absence of evidence of custom, a question for the jury.

2. One who has contracted to sell hogs to be delivered on a certain day is released from obligation to deliver or tender delivery, the purchaser having theretofore told him, because he would not deliver them before that time, that he would not receive them on that day, or at any other time, and sent him word to go to h _____ with his hogs.

3. Allegation in the petition that both plaintiffs entered into the contract precluded them from denying it.

4. Statement in a memorandum of a contract of sale that money given the seller was a payment is binding, and it cannot be shown that it was given as a forfeit.

Appeal from Circuit Court, Howell County; Wm. N. Evans, Judge.

Action by Lee Cousins and another against J. P. Bowling. Judgment for defendant. Plaintiffs appeal. Reversed.

Livingston & Burroughs, for appellants. H. D. Green, for respondent.

BLAND, P. J.

The suit originated in a justice's court in Oregon county. It was appealed to the Oregon circuit court, from which it was taken by change of venue to the Howell circuit court, where a trial was had, resulting in a judgment for defendant, from which the plaintiffs appealed.

The substantive averments of the petition are that in the month of October, 1901, plaintiffs entered into a contract with defendant for the purchase and delivery of 166 head of hogs, to be delivered at Koshkonong, Mo., on October 26, 1901, at a price agreed upon; that they paid defendant $25 earnest money on the purchase; that a memorandum in writing of the contract was signed by both parties; that defendant failed and refused to deliver the hogs, whereby plaintiffs were damaged in the sum of $105, for which, with the $25 paid on the purchase price, they ask judgment. The answer was a general denial. The memorandum contract referred to in the petition is as follows.

                               $25.00 paid on
                      65 to 100 at .......... $3.50
                     100 up at ..............  4.00
                per hundred. All to be well. Delivered at
                Koshkonong, Saturday, 26th. Dock on bad
                piggy sows.                W. H. Hann
                                           J. P. Bowling
                

Defendant contracted with one Erwin for 105 head of the hogs. His son had 66 head that defendant intended and had arranged with his son to put in on the contract. The Erwin hogs were driven to Koshkohong on October 25th, and put in the railroad stock pens, with the understanding between defendant and Erwin that they would be weighed up, and turned over to defendant by Erwin on the following morning. The son's hogs were brought in on the 26th. Cousins, one of the plaintiffs, was at Koshkonong on the 25th, saw the Erwin hogs, and wanted them delivered on that day. Defendant declined to deliver at that time, telling Cousins that they were not yet his hogs; that they would be weighed up and delivered to him the next morning; that all the hogs that he was to deliver on the contract were not yet in, and he would weigh up and deliver all of them the next day. Defendant's evidence is, and he is corroborated by other witnesses, that Cousins told him if he did not deliver the hogs then and there, that his (Cousin's) money would never pay for them. On the following day, October 26th, the day the hogs were to be delivered, Cousins and Hann arrived in Koshkonong at 5:30 p. m. They testified they were unable to see or locate the defendant until about 8:30 p. m., and after he had retired for the night. When they found him, they asked him to have the hogs weighed up that night. He declined to do this, on the ground that it was not businesslike, and that it was too late. They then asked him if he would weigh them up the following morning, which would be Sunday. Defendant replied that he would not do business on Sunday. They then asked him if he would weigh them up on Monday morning. He said he would if plaintiffs would pay the expense of keeping the hogs over until that time. They refused to do this. Some hot words passed, and plaintiff attached the hogs. After Cousins demanded that the hogs be weighed up on the 25th, he left Koshkonong, and went to Thayer, and from there sent word to the defendant "to go to hell with his hogs." Defendant then ordered a car with the intention of shipping the hogs on his own account. Plaintiffs testified that they paid the defendant the $25 as part of the purchase price of the hogs. The defendant testified that he refused to sign the memorandum contract unless Hann would put up $50 as a forfeit; that they finally agreed on $25 as a forfeit, and that the same was given to him as a forfeit, and not as payment on the hogs.

The plaintiffs asked the following instruction, which the court refused to give: "(4) The jury is instructed that a day in law embraces the time from midnight to midnight, and that plaintiffs had from 12 o'clock on the night of the 25th to 12 o'clock on the night of the 26th in which to comply with their contract of receiving and paying for the hogs in question." The evidence is that the moon was shining on the night of the 26th, but that the hogs would have to be driven from the pen where they were to another to be weighed. Under ordinary conditions, a party bound by a contract to deliver a thing on a particular day has until midnight of that day to make the delivery or offer of delivery. Startup v. Macdonald, 6 Mann. & Gr. 593. In this case, at page 622, it is said: "The general rule, I conceive, is that wherever, in cases not governed by particular customs of trade, the parties oblige themselves to the...