Crawford v. Elliott

• Decision Date: 31 October 1883
• Citation: 78 Mo. 497
• Parties: CRAWFORD, Plaintiff in Error, v. ELLIOTT.
• Court: Missouri Supreme Court

78 Mo. 497

CRAWFORD, Plaintiff in Error,

v.ELLIOTT.

Supreme Court of Missouri.

October Term, 1883.

Error to Pettis Circuit Court.--HON. WM. T. WOOD, Judge.

REVERSED.

Geo. P. B. Jackson and O. A. Crandall for plaintiff in error.

Ryland & Ryland for defendants in error.

MARTIN, C.

This was an action to recover of defendants, as partners, a balance of account due on a contract for the sale of corn. The contract was as follows:

“HUGHESVILLE, May 15th, 1876.

This is a contract made by J. B. Elliott, of one part, and G. W. Crawford of the other part, as follows: I, G. W. Crawford, sell to Elliott all my crop of corn, except such as I may want for farm use, and the damaged corn, if any; corn to be sound and dry. The price to be at seller's option, inside of fifteen days from the time the corn is shelled, and to be made seventeen cents below what No. 2 mixed corn is worth in St. Louis, at the time the price is to be fixed; corn is to be kept dry, so shellers will have no trouble to keep damaged corn separate from the dry and sound corn. I, G. W. Crawford, acknowledge the receipt of $500 as first payment on said corn. I, J. B. Elliott, agree to pay to Crawford as above stated for his corn crop, and shell it at Crawford's farm, and haul it to station at my own expense. I pay Crawford $500 at this date, and then pay all balance when corn is shelled and price fixed. This corn is all to be weighed at the station, Hughesville, and paid for as per weight on scales at fifty-six pounds to the bushel, shelled. If any of this crop of corn grades No. 2 white mixed, in St. Louis, then Crawford is to fix price, as in No. 2 mixed corn, seventeen cents below St. Louis price. The price of said corn is to be made by the quotations made at the elevator that Elliott may ship to.

J. B. ELLIOTT,

GEO. W. CRAWFORD.'

In the pleadings and on the trial it was admitted that defendants were partners doing business and dealing in corn under the name of J. B. Elliott, and that the contract sued on was a part of said partnership transactions. There was no dispute about the quantity of corn received by defendants under the contract, nor as to the amount of money paid to plaintiff, it being agreed that the corn amounted to 3,500 bushels, and the money to $864.30. The plaintiff claimed $87.05 as still due him under the contract, which the defendants refused to pay. They claim in their answer that some of the corn so received by them did not grade “No. 2 mixed,” in St. Louis, and that they were compelled to sell it at a loss of $87.05 in consequence of this fact, and that the amount to be paid plaintiff under the contract ought to be reduced in the amount of said loss, which, if done, would leave nothing coming to him. This difference has risen from the different constructions placed by the parties respectively upon the contract.

The trial resulted in a judgment for defendants under the construction placed upon the contract by the court in its instructions, which were as follows:

1. Under the contract sued on it was the duty of the plaintiff to deliver to the defendants none but sound and dry corn, and if he delivered to them corn not sound and dry, then as to such damaged corn, the plaintiff cannot recover in this action as for sound and dry corn.

2. If the court believe from the evidence that the corn was delivered to the defendants in such a damp and damaged condition, that by reason thereof, the price and value of the corn was reduced below the contract price to the amount of $87.05, then the court will find the issues for the defendants, if the court should further find that defendants have paid plaintiff all there was due him under said contract.

3. Although the court may find from the evidence that defendants' employes shelled the corn in question, yet it was not the duty of the defendants under the contract to separate and select the sound and dry corn from the damp and damaged corn, so as to render them liable for all the damaged corn they shelled and shipped, as if the same had been sound and dry.

It is for error in these instructions, which were given at the instance of the defendants, that the plaintiff prosecutes his writ in this court.

Whether the action of the court was correct in giving these instructions must depend upon the construction which should be given to the contract; and this is an undertaking not entirely free from difficulty and doubt. A contract of this character must be construed in the light of the facts and circumstances surrounding the subject matter it embraces. The corn was raised in 1875, and was on the plaintiff's farm in two cribs, each about thirty-two feet long by sixteen feet wide. One was inclosed with boards on the sides and ends about six inches apart, the other with rails, and both were covered with timothy and prairie hay. Elliott had seen the corn twice before the date of the contract with a view of buying it. He wrote the contract himself and testifies that he examined the corn before buying, and found both damaged and sound corn. It was shelled by one Rice as agent of defendants. Rice testifies that Crawford told him to keep the wet corn separate from the dry corn when shelling, and that he informed him that he had no time to attend to this instruction, and that it was not his place to do so. It seems that there was no rain to speak of during the shelling, but that the corn was not dry throughout. The plaintiff testifies that the corn was damaged and damp one foot in on the sides of the cribs. Four car loads were rejected in St. Louis by the inspector as damp, and the loss to defendants is claimed to have been suffered in these loads.

From...