Dehner v. Miller

• Citation: 166 Mo. App. 504,148 S.W. 953
• Parties: DEHNER v. MILLER.
• Decision Date: 02 July 1912
• Court: Court of Appeal of Missouri (US)

148 S.W. 953

166 Mo. App. 504

DEHNER v. MILLER.

St. Louis Court of Appeals. Missouri.

July 2, 1912.

On Motion for Rehearing, July 2, 1912.

1. SALES (§ 340) — REMEDIES OF SELLER — SUIT FOR PRICE.

Where a defendant refused to take baled straw in pursuance of a contract of sale, the seller may elect to hold the straw for the benefit of the defendant and sue for the contract price.

2. SALES (§ 364) — ACTION FOR PRICE — INSTRUCTIONS.

In an action by the seller of baled straw, which the buyer had refused to take for the

contract price, where the contract provided one price in case of delivery at the river bank and another price in case of delivery on barges or to a railroad company, an instruction that the seller might recover the contract price for the straw was not inconsistent with another instruction charging that, if the seller had the straw baled and ready for delivery, the jury could only deduct the cost of hauling it.

3. SALES (§ 340) — REMEDIES OF SELLER — ELECTION.

A buyer of personal property cannot compel the seller to elect another remedy than that which he has chosen, and so, where the seller has chosen to hold the buyer for the contract price, instructions that the seller can recover only the amount which he is damaged are properly refused.

4. TRIAL (§ 76)—RECEPTION OF EVIDENCE— TIME FOR OBJECTIONS.

An objection to a question to a witness is properly overruled, where not made until after the answer.

5. SALES (§ 358)—ACTIONS FOR PRICE —EVIDENCE—ADMISSIBILITY.

In an action by a seller of straw for the purchase price, the admission of an affirmative answer to the question whether the seller's wife had told him what the purchaser told her in his absence, nothing further being shown, was not erroneous, as tending to show the making of two contracts.

On Motion for Rehearing.

6. EVIDENCE (§ 67)—PRESUMPTIONS.

When a state of fact is once shown to exist, it is presumed to exist until the contrary is shown.

7. SALES (§ 340)—BREACH OF CONTRACT— DUTY OF SELLER.

Where a buyer of personal property breached his contract, it is not the duty of the seller to resell the goods and look to the buyer for any loss; the seller having the right to hold the buyer for the contract price.

Nortoni, J., dissenting.

Appeal from Circuit Court, Lewis County; C. D. Stewart, Judge.

Action by John Dehner against John W. Miller. From a judgment for plaintiff, defendant appeals. Affirmed.

Hilbert & Hilbert and A. F. Haney, for appellant. O. C. Clay, of Canton, for respondent.

REYNOLDS, P. J.

This action was commenced before a justice of the peace in Lewis county and a statement in the form of a petition there filed by plaintiff, setting out that on a day named defendant contracted and agreed to purchase from plaintiff and did purchase from him a lot of wheat and oat straw, to be baled by plaintiff and delivered by him to defendant at the town of Canton, at the price of $3.25 per ton if delivered on the banks of the Mississippi River, or $3.50 per ton if delivered in cars or on barges on the bank of the river. Plaintiff avers that under this agreement he baled 118 tons and 765 pounds, of which he delivered about 50 tons to defendant which defendant received and paid for; that he had baled the remainder, consisting of 68 tons and 765 pounds, and was ready to be delivered to defendant but defendant, after putting him off from time to time, finally refused to accept it, although plaintiff has at all times been ready and willing to deliver the same at the price agreed upon. Wherefore he claims defendant is indebted to him for the contract price $205.12½, for which he asks judgment with interest and costs.

It appears that defendant recovered before the justice, whereupon plaintiff appealed to the circuit court, where on a trial anew before the court and a jury, the jury returned a verdict for plaintiff in the sum of $187.91. From this, filing a motion for new trial and one in arrest, and saving exception to these motions being overruled, defendant has duly perfected his appeal to this court.

There are six errors assigned here by appellant. First, to error in overruling the motion for new trial. Second, to error in giving instruction No. 1 asked by plaintiff. Third, fourth and fifth, to error of the court in refusing three instructions asked by defendant, and sixth to the error of the court in admitting improper evidence over the objections of defendant.

It will be observed by the statement or petition that plaintiff, claiming to have made a sale and tendered the articles sold and averring the refusal of defendant to accept a large part of these articles, that is baled straw, claims that defendant is liable to him for the contract price. That is to say, plaintiff, averring performance of the contract and completion and tender of the articles contracted for and failure to receive and pay for these, has elected one of the three remedies to which the vendor is entitled on a breach of a contract of sale of personal goods. That he had a right to do this is clear. The decisions sustaining that right have so recently been gone over by this court in Koenig v. Truscott Boat Mfg. Co., 155 Mo. App. 685, 135 S. W. 514, that it is unnecessary to go into a discussion of the proposition. Plaintiff in this case, respondent here, as did the defendant and respondent in Koenig v. Truscott Boat Mfg. Co., supra, has elected to sue for the contract price. He was entitled to recover that provided the evidence showed the contract, performance by plaintiff and refusal by defendant to pay the price. We have read all the evidence as abstracted by counsel for both sides and have no hesitation in saying that the verdict arrived at by the jury is sustained by substantial testimony.

The amount of recovery is within the second instruction given by the court at the instance of plaintiff and which learned counsel for appellant have apparently overlooked. By the first instruction which the court gave at the instance of plaintiff, after advising the jury that it was necessary to find the contract and its performance by plaintiff and refusal to accept the straw by defendant, and that plaintiff was ready, willing, and able to deliver the straw, the court told the jury that if they found for plaintiff they should allow such sum per ton for such number of tons as defendant had agreed to buy and pay for less the number of tons he had received and paid for, if the jury found and believed that plaintiff had the straw baled and was ready, willing and able to deliver to defendant at the place specified. The second instruction told the jury that if they should find from the greater weight of evidence that defendant purchased the straw and received and paid for part of it and thereafter put the plaintiff off from time to time in regard to receiving the balance of the straw and finally refused to receive it, in that event t...