Edmunds v. Cochrane

• Decision Date: 13 December 1920
• Docket Number: No. 13614.,13614.
• Citation: 226 S.W. 1007
• Parties: EDMUNDS et al. v. COCHRANE et al.
• Court: Missouri Court of Appeals

226 S.W. 1007

EDMUNDS et al. v. COCHRANE et al.

No. 13614.

Kansas City Court of Appeals. Missouri.

December 13, 1920.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

"Not to be officially published."

Action by Edward Edmunds and another against Luman H. Cochrane and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Hal R. Lebrecht and L. A. Laughlin, both of Kansas City, for appellants.

Darius A. Brown and John G. Park, both of Kansas City, for respondents.

TRIMBLE, J.

This is an action for damages for breach of contract in regard to the sale and purchase of potatoes alleged to have been sold by plaintiffs to the Cochrane Brokerage Company, a copartnership. Since the suit was begun, one of the defendant partners died, and the executors of his estate have been substituted in his place. Plaintiffs are partners engaged in the business of buying, selling, and shipping potatoes, and have their principal place of business at Philadelphia, Pa., while the Cochrane Brokerage Company, whom we will hereinafter refer to as defendants, were in the same business at Kansas City, Mo.

The petition alleged that

"At various dates between and including the 11th and 16th days of August, 1917, plaintiffs sold and delivered to defendants 20 cars of bulk cobbler potatoes at and for the price of $1.30 per bushel f. o. b. Jersey; that plaintiffs agreed to deliver on board cars at loading stations in the state of New Jersey the said 20 cars of bulk cobbler potatoes, and defendants agreed to pay $1.30 per bushel for said 20 cars of bulk cobbler potatoes, and also agreed to pay the freight charges on said 20 cars of bulk cobbler potatoes from said loading stations in the state of New Jersey to destination at Kansas City, Mo."

After alleging the delivery on board cars of bulk cobbler potatoes as follows: Five carloads at Salem, seven carloads at Elmer, one carload at Daretown, two carloads at Bridgewater, three carloads at Greenwich, and two carloads at Woodstown, all in the state of New Jersey — and that defendant received and accepted and paid for two of said cars on their arrival at destination in Kansas City, the petition then proceeded to allege:

That "defendants refused to receive and accept the remaining 18 cars of said bulk cobbler potatoes upon their arrival at Kansas City, and attempted to repudiate said contract of sale, and refused to pay the contract price for said 18 cars of bulk cobbler potatoes, and the freight charges thereon," and that "within a reasonable time after the refusal of defendants to receive and accept said 18 cars of bulk cobbler potatoes, and their attempt to repudiate said contract of sale, the plaintiffs notified defendants that unless all of the ears of potatoes said to `them by plaintiffs were accepted on or before Monday, August 27, 1917, the said cars of potatoes would be resold by plaintiffs, and the net proceeds thereof credited to the account of defendants, and that plaintiffs would hold defendants liable for any loss sustained by plaintiffs by reason of the breach of said contract of sale," and that "within a reasonable time after said notice of resale' to defendants plaintiffs did resell said 18 cars of bulk cobbler potatoes at the best price obtainable therefor."

The suit is for the loss sustained, being the difference between the contract price and the amount received upon a resale of the potatoes. The defendants claimed the potatoes in the eighteen cars rejected were, to a great extent, undersized, grubby, and wormeaten, and rejected them on that account, after inspecting them on their arrival in Kansas City. Upon a trial the jury found for plaintiffs and returned a verdict for $6,983.37, being a few hundred dollars less than the amount sued for. The defendants have appealed.

A man by the name of Hahn was a produce broker in Kansas City, and the sale and purchase of potatoes in this case was brought about through him, he being the middleman in the transactions. The sales involved herein were brought about in this way: After talking with defendants and getting an offer from them, Hahn, on August 11, 1917, telegraphed plaintiffs that defendants offered $1.30 per bushel for five carloads of bulk cobbler potatoes from points in New Jersey. Plaintiffs on same day answered by wire accepting defendant's offer reciting terms thereof, namely, five carloads of bulk cobler potatoes $1.30 per bushel f. o. b. in the state of New Jersey and routed as directed. This was followed by a confirmatory letter on the same day. Hahn promptly in writing notified the defendants of the acceptance of the offer. The next day, August 12, 1917, Hahn wired plaintiffs he had sold defendants five additional cars of bulk cobbler potatoes, "same price," to which plaintiffs replied by telegram accepting and confirming offer of "five additional caps bulk cobblers dollar thirty per bushel f. o. b. Jersey," following it also with a letter; and of this defendants `were promptly notified in writing by Hahn. On August 14, 1917, Hahn wired plaintiffs he had sold defendants "five more additional cars same quality, price," which plaintiffs likewise accepted in a telegram saying, "confirm Cochrane five cars bulk cobblers dollar thirty per bushel f. o. b. Jersey." This was likewise followed by a letter of confirmation, and defendants were likewise notified thereof by Hahn. Later, on the same day last above mentioned, August 14, 1917, "five more cars bulk same quality," with a request to "shade price" if possible, were ordered by Hahn for defendants, which plaintiffs accepted in a confirmatory telegram for "five more cars, same price," and explaining why they could not sell the potatoes for less, and this was followed by a letter of the same character. Hahn immediately notified defendants of plaintiffs' acceptance of "5 cars more in addition to confirmation No. 1948 [the other five cars of same date] bulk cobblers at $1.30 bu. all f. o. b. Jersey."

The foregoing orders were entered on plaintiffs' books on the dates received and were filled at various loading points in New Jersey, to wit: On August 11, 1917, four cars were loaded at Salem, and on August 13th one car was loaded at Bridgeton, N. "J., making the five cars ordered on the 11th as heretofore stated. These were shipped on straight bills of lading to Kansas City consigned to defendants. Of the five cars that were sent to Kansas City in fulfillment of the second order of August 12, 1917, two of them were loaded at Elmer on August 9th and 11th, respectively, and three at Daretown, N. J., on August 17th, and at time of shipment were consigned by plaintiffs to themselves at Pitcairn, Pa., on straight bills of lading. Pitcairn is west of Pittsburgh, and on arrival there the plaintiffs changed the destination of these five cars from Pitcairn to Kansas City and requested the carrier to change the consignee of the shipment from plaintiffs to defendants, which was done.

Of the five cars involved in the sale effected on August 14th, all were loaded August 14th, two were loaded at Greenwich, two were loaded at Bridgeton, and one at Salem, N. J., and all were consigned to defendants at Kansas City on straight bills of lading.

Of the five cars involved in the last order of August 14th, three were loaded at Elmer, N. J. (one on August 11th and two on August 14th), consigned at time of shipment by plaintiffs on straight bills of lading to themselves at Pitcairn, at which point they were diverted by plaintiffs' order to defendants at Kansas City on bills of lading to the defendants. The other two cars were loaded at Woodstown, N. J., on August 15th, and consigned by plaintiffs on straight bills of lading to defendants at Kansas City.

Of the twenty cars, three arrived in Kansas City August 20th, eight on August 22d, three on August 24th, three on August 25th, and the other three on August 26th. A draft was drawn by plaintiffs on each car, and they were presented for payment through the First National Bank of Kansas City. As the cars arrived, they were inspected by inspectors in the employ of defendants, and one of the defendants himself inspected ten of the cars. The method of inspection was to go down among the potatoes about two feet in six or eight places in a car, which was loaded in bulk. As a result of the inspection two of the cars were accepted and the drafts therefor were paid. The defendants rejected the other eighteen cars and refused to pay the drafts for them, the reason for rejection of the potatoes being, as heretofore stated, that they were undersize, grubby and wormeaten.

Plaintiffs notified defendants that, if the cars were not accepted by August 27th, they would be sold and the proceeds credited to their account, and, if any loss resulted, suit would be brought. The eighteen cars of potatoes were thereafter sold and it is conceded that plaintiffs' agent, sent to attend to this matter, got the best price obtainable on the market at that time.

Before entering upon the trials, defendants filed a motion to make the petition more definite and certain and to separately state the alleged causes of action. This was overruled and then the defendants filed answer and later went to trial. In this answer nothing was said about there being various causes of action joined in one count, nor was any complaint therein made of that nature. The answer was a general denial and a plea of the statute of frauds. Defendants are not now in a position to urge error in overruling the motion to make more definite and certain. Sperry v. Hurd, 267 Mo. 628, 639, 185 S. W. 170. Defendants cite certain remarks in Shohoney v. Quincy, Omaha, etc., R. Co., 223 Mo. 649, 671, 673, 122 S. W. 1025, but the opinion in the Sperry v. Hurd Case calls attention to the fact that the remarks referred to in the...