Empire Plow Co. v. Berthold & Jennings Lumber Co.

• Decision Date: 02 January 1922
• Docket Number: No. 16820.,16820.
• Parties: EMPIRE PLOW CO. v. BERTHOLD & JENNINGS LUMBER CO.
• Court: Missouri Court of Appeals

237 S.W. 137

EMPIRE PLOW CO. v. BERTHOLD & JENNINGS LUMBER CO.

No. 16820.

St. Louis Court of Appeals. Missouri.

January 2, 1922.

Rehearing Denied February 2, 1922.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

"Not to be officially published."

Action by the Empire Plow Company against the Berthold & Jennings Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Marion C. Early, of St. Louis, for appellant.

Wilson & Trueblood, of St. Louis, for respondent.

DAUES, J.

This is an action for damages for breach of contract. The litigation grows out of an order given by plaintiff to the defendant for 45,000 feet of oak plow handle strips, to be delivered f. o. b. cars at Cleveland, for $38 per 1,000 feet. This order was dated September 1, 1916; defendant, by letter of September 6, 1916, accepting the order for "shipment in 60 to 90 days, * * * subject to delays occasioned by strikes, weather conditions, car shortage and other causes beyond our control." The petition alleges that plaintiff, at defendant's request, extended the time for delivery until January 10, 1918, at which time, it is alleged, defendant breached the contract by failing to deliver the lumber, or any part of same. The damages are laid at $1,280. The answer alleges, in substance, that the defendant was unable to fill the contract owing to conditions beyond its control, and that the contract sued upon was abandoned by the parties about June 25, 1917, and that a new agreement was substituted whereby plaintiff agreed to pay and authorized defendant to purchase for it lumber designated in the order of September 1, 1916, at advanced prices. Defendant pleaded that it could not comply with this second agreement owing to circumstances beyond its control. The reply was a general denial. A jury trial was had in the circuit court of the city of St. Louis, resulting in a verdict and judgment in favor of plaintiff for the full damages claimed in its petition. Defendant appeals.

The discussion of the facts as becomes material can be given more concisely in connection with appellant's complaints against the action of the trial court in regard to same.

First of defendant's assignment of errors is directed against the court's action in refusing to grant a new trial on account of an alleged false statement as to a material fact made by plaintiff's counsel in his address to the jury. This statement is as follows:

"They could have bought it right here in St. Louis. Here is an order from Henry Quellmaiz Lumber Company, under date of December 13th. The plaintiff bought some right here in the city of St. Louis. They could have bought it here. Here are 30,000 or 40,000 feet of it at $70.08 per thousand; that is, $45 a thousand, plus $8.25 freight; there is $8.008."

No exception was taken by the defendant at the time, but the objection makes its appearance for the first time in the motion for a new trial. Learned counsel for the defendant insists that this statement was highly prejudicial, for the reason that the contest before the jury revolved itself about the fact as to whether defendant was able, that is, whether defendant was prevented by circumstances beyond its control from performing its undertaking, and that on that issue plaintiff put in evidence about 30 orders which it had sent to various sawmills throughout the country, copies of these orders being attached to the deposition of M. S. Haas, president of the plaintiff company. Some of these orders are stamped "Filled"; on others there were notations indicating that they ware partially filled; and on others there were no notations as to whether same had been filled. Among these orders in the exhibit was one to the Henry Quellmalz Lumber Company of St. Louis, dated December 13, 1917, (Exhibit DD), this being the only order among the exhibits placed with a St. Louis firm. This order did not bear the mark "Filled," nor were there any notations on same indicating that it was partially filled.

It is defendant's insistence that plaintiff's counsel in making the above address with these exhibits in his hands misled the jury by saying that plaintiff "bought this same material from a firm in defendant's home town," and that such statement not only was false, but was a fraud and deception practiced by plaintiff's counsel which resulted in great prejudice against defendant, and that such practice loudly calls for a new trial. Appellant's counsel insists that the statement made was unequivocably true.

We call attention to the well-established rule as laid down by all the appellate courts of this state that, whenever remarks of counsel during the progress of the trial shall amount to a misstatement of a material fact which is considered by the opposing counsel as prejudicial, it is necessary that an objection be noted to the party's remarks alleged to be objectionable, and to call the attention of the trial court to the specific ground on which the objection is based, and that the court be requested to rebuke counsel therefor, and should the court not administer the proper rebuke, or take other proper and necessary action, counsel should then except to the court's failure to correct such misstatement, and unless the record shows this to have been done our courts, except in extreme cases, will not grant a new trial on this ground. McKinney v. Laundry Co., 198 Mo. App. 386, loc. cit. 398, 200 S. W. 114, and cases cited; Harriman v. Dunham et al. 196 S. W. 443; State v. Harrison, 263 Mo. 642, 174 S. W. 57; Latham v. Hosch, 233 S. W. 84.

But defendant's counsel says that this falsehood or misstatement was not detected at the time it was made by the court, the jury, or the opposing counsel, and that, when a deceit which in fact deceives is practiced by the successful party at a jury trial, there need not be an objection interposed at the time the deceit is accomplished, because in the very nature of things such objection cannot be made until the deception is discovered, and that, if the objection is presented in the motion for new trial, it is in time. It is to be conceded that the courts may make exceptions to the rule first above stated in the interest of justice. It is conceivable that a misstatement by counsel could be of such character as to hide for the time the mischief involved, and of such importance as to warrant a retrial, although first presented to the court in the motion for new trial. Though we should consider appellant's objection to the remarks of opposing counsel as being preserved for a review, which we do not, we still would feel constrained to rule against the defendant on this point.

Section 1453, R. S. Mo. 1919, authorizes the court to set aside a verdict and grant a new trial when "a fraud or deceit [is] practiced by one party upon the other." However, from the record before us, we are not convinced that a deceit was practiced in this case, and certainly not such deception as is discussed in the authorities cited by appellant See Standard Investment Go. v. Hoyt, 164 Mo. 124, 63 S. W. 1093.

Appellant's next insistence is that the court erred in giving plaintiff's general instruction (No. 1), which purported to state the facts necessary for plaintiff's recovery and also the facts which would defeat such recovery, because, appellant says, the instruction omitted its defense of a substituted contract. By an instruction (No. 4) given on behalf of the defendant the issue of a substituted contract was presented to the jury. By this latter instruction the jury were told that, if they believe "from the evidence that on or about the 25th day of June, 1917, plaintiff proposed to pay a higher price for the materials mentioned than that named in the original quotation, * * * and that defendant agreed to use its best efforts, and did use its best efforts, to fill said order at said advanced...