Dustin Grain Co. v. McAllister

• Decision Date: 18 February 1924
• Docket Number: 6160.
• Citation: 296 F. 611
• Parties: DUSTIN GRAIN CO. v. McALLISTER.
• Court: U.S. Court of Appeals — Eighth Circuit

296 F. 611

DUSTIN GRAIN CO. v. McALLISTER.

No. 6160.

United States Court of Appeals, Eighth Circuit.

February 18, 1924

Campbell & Campbell, of Wichita, Kan., Embry, Johnson &amp Tolbert, of Oklahoma City, Okl., and Clinton R. Barry, of Ft Smith, Ark., for plaintiff in error.

Before SANBORN and KENYON, Circuit Judges, and MUNGER, District Judge.

SANBORN Circuit Judge.

On November 8, 1917, J. M. McAllister made a written contract with the Dustin Grain Company, a corporation, to sell and to deliver to the latter's order, on or before November 18, 1917, 20 cars of No. 3, or better, dry white or mixed corn to be billed to the Dustin Grain Company at Fort Worth, Tex. The contract provided that the purchase price of the corn should be $1.35 for the white and $1.30 for the mixed corn per bushel, that McAllister should make drafts on the Dustin Grain Company with bills of lading attached for the cars of corn as they were respectively shipped, and that the Dustin Grain Company should draw back on McAllister, if any of the corn misgraded. McAllister shipped two cars of corn under the contract, and refused to ship any more. Thereupon the Dustin Grain Company sued him for $3,260.29, its alleged loss of the profits it would have made, if the defendant had performed his contract. The defendant admitted the contract, and pleaded in defense that the plaintiff refused to receive some of the corn which he shipped to it under the contract, and in that way committed the first breach of it, and thereby relieved him from liability to ship any more corn. The case was tried by a jury, which returned a verdict for the defendant, and the decisive question in this case is presented by the refusal of the trial court to instruct the jury, as requested by the plaintiff, that the defendant had shown no facts or circumstances that justified him in refusing to deliver the 18 carloads of corn which he agreed, but refused, to deliver. The only ground on which the defendant claimed that he was justified in his refusal to ship the 18 cars of corn was that the plaintiff committed the first breach of the contract, and released him therefrom by its refusal to accept under the contract car No. M. P. 36379, one of the two cars which the defendant shipped, upon the ground that the corn therein was so hot and wet on its arrival at Fort Worth, its place of delivery, that it fell below grade No. 3, and thereby misgraded, when, as the defendant claimed, such corn was in fact dry and up to grade No. 3 specified in the contract. Whether or not this corn was hot, wet, and below grade, when it reached its place of delivery at Fort Worth, was the only issue upon which there was any conflict in the evidence, and but one witness testified that it was not hot, wet, and below grade.

At the close of the evidence the following facts were admitted or proved without any conflict in the evidence: On November 9, 1917, the defendant at Gravette, Ark., shipped this car of corn to Fort Worth, Tex., and on the same day drew his draft for the contract price thereof, $752.64, on the plaintiff at Oklahoma City. That draft was paid by the plaintiff before the car arrived at Fort Worth. The contract provided that 'buyer will draw back on shipper if corn misgrades. ' Wet and hot corn was below the contract grade. On November 14 or 15, 1917, the plaintiff at Oklahoma City was informed that the corn in this car at Fort Worth was wet and hot, and it telegraphed the defendant that this car inspected wet and hot, that the plaintiff could not use it, and asked if it should draw back. On November 17, 1917, the defendant answered, among other things, 'Draw back on me for car 36379 Missouri Pacific, and send bill of lading to A. F. Hardie and Son, Dallas, Tex.' After one or two telegrams the plaintiff drew back pursuant to this direction and the defendant paid the draft. Upon the issue whether or not the corn was hot and wet, this was the evidence:

The plaintiff notified the defendant that it was hot and wet, and asked if it should draw back. The defendant directed it to do so. It did so, and the plaintiff paid the draft. J. E. Robinson was the chief grain inspector of the Fort Worth Corn & Cotton Exchange at Fort Worth. He testified that his duty was to inspect grain at the request of any interested party to determine its condition, that on November 15, 1917, he inspected the corn in car M.P. 36379 'and found same to be snap mix corn hot and wet. ' Mr. Cadwallader, a witness for the plaintiff, testified that on November 19, 1917, he inspected the corn which was then in this car, and found that it was hot and wet. The only evidence tending to conflict with the testimony of these two witnesses is the testimony of Mr. Hardie, for the defendant, that about the 16th of November, 1917, at Fort Worth, he inspected corn that he found in a M., K. & T. car, and found it to be 'a splendid car of corn absolutely dry,' and that it was of grade No. 2. He testified that he thought that car of corn was shipped to the Dustin Grain Company, that he did not know whether it was a car of corn that had been rejected or turned down by the Dustin Grain Company, that the number of the car was M.P. 36379, that the corn was not in this car when he inspected it, and that it was originally shipped in that car. Asked how he knew it was, he answered, 'Because I went to the railroad company and asked them for that car, and they looked on their freight bill and said it had been transferred to the M., K. & T. car. ' Asked if he knew of his own knowledge that the car he saw was in fact car M.J. 36379, he replied, 'No, sir.'

Because the testimony of this witness to the identity of the corn he examined with that which the defendant shipped to the plaintiff in car M.P. 36379 rests entirely upon hearsay of hearsay, upon the oral...