F. W. Brockman Commission Company v. Aaron

• Decision Date: 28 June 1910
• Parties: F. W. BROCKMAN COMMISSION COMPANY, Appellant, v. EDWARD AARON, Respondent
• Court: Kansas Court of Appeals

130 S.W. 116

145 Mo.App. 307

F. W. BROCKMAN COMMISSION COMPANY, Appellant, v. EDWARD AARON, Respondent

Court of Appeals of Missouri, Kansas City

June 28, 1910

Appeal from Jackson Circuit Court.--Hon. Walter A. Powell, Judge.

Judgment affirmed.

Haff & Michaels for appellant.

(1) The best evidence of market value is the price realized in actual, open sales, and "quotations" made by a committee of an exchange which are materially lower than such actual prices are not evidence of market value. 16 Cyc. 143; 19 Cyc. 1153; 26 Cyc. 819; Parlin & Orendorff Co. v Boatman, 89 Mo.App. 48; Commission Co. v Railroad, 64 Mo.App. 593; Fountain v. Railroad, 114 Mo.App. 683; Henderson v. Railroad, 126 Mo.App 612; Meriwether v. Railroad, 128 Mo.App. 666; Brandom v. Railroad, 154 Mo.App. 94; Bank v. New Bedford, 175 Mass, 257; Railroad v. Reeves, 97 Va. 284. (2) The verdict was not responsive to the evidence or to the instructions, and showed that the jury misconceived the issues, and the verdict must be set aside because of that. Cole v. Armour, 154 Mo. 355; Blackwell v. Adams, 28 Mo.App. 64; Woodson v. Harmon, 85 Mo. 446; Edwards v. Railroad, 82 Mo.App. 485; Fairgrieve v. Moberly, 29 Mo.App. 152; Huff v. Thurman, 78 Mo.App. 638. (3) Defendant's instruction No. 7 was confusing; it singled out a particular fact, made it conspicuous and commented on it, and was therefore clearly erroneous. Rickey v. Tenbroeck, 63 Mo. 536; Wehle v. Haviland, 69 N.Y. 448; Doud v. Reid, 53 Mo.App. 562; Railroad v. Stock Yards Co., 120 Mo. 565; Jones v. Jones, 57 Mo. 138; Swink v. Anthony, 107 Mo.App. 607.

Eppstein, Ulmann & Miller for respondent.

OPINION

JOHNSON, J.

--Action for breach of contract. The answer is a general denial. A trial to a jury resulted in a verdict and judgment for plaintiff in the sum of $ 341.55, but being dissatisfied with the amount of the verdict, plaintiff brought the case here by appeal. Defendant is satisfied and did not appeal.

Plaintiff complains of errors committed by the court in the rulings on evidence and on the instructions and further contends that the verdict must have been the product of a compromise among the jurors since the amount of the damages allowed is without any evidentiary support. The parties to the transaction which gave rise to the suit were Mr. Brockman of St. Louis, Mr. Aaron of Kansas City and Mr. Papendick, sometime of Kansas City, all "butter and egg" merchants. One day in February, 1905, these gentlemen with another "butter and egg" man met in a cafe in St. Louis, and their conversation became an animated discussion of the conditions of the egg market. Brockman was a "bear" on eggs, Aaron and Papendick were "bulls." Finally, Aaron offered to deliver to Brockman, during the month of April, ten cars of "current receipt" eggs, f. o. b. cars at Kansas City, at 14 1-2 cents per dozen, cases included. Brockman accepted the offer and before the parties separated, Aaron allowed Papendick a share in the bargain by accepting the latter's offer to deliver to him one-fourth of the eggs required to fill the order at the price of 14 1-2 cents per dozen.

It is explained that "current receipt" eggs means "those that come in currently from the country in the regular course of receipts from shippers. In this case, they were current receipts from Kansas and Missouri." The magnitude of the transaction will appear from the fact that it involved the delivery of 1,440,000 eggs to be collected in the regular course of business from shipments to the Kansas City market.

The first difference between Brockman and Aaron occurred over the confirmation of the oral contract. In his letter of confirmation Aaron stated "stock is to consist of Missouri and Kansas eggs in cases as we receive them from shippers." Brockman rejoined, "If you will recollect, it was understood and agreed upon that they were to be new No. 2 cases. We could not for a moment consider the eggs in all sorts of ramshackle cases. The eggs are to be taken as they come from shippers but must be in new No. 2 cases." Aaron answered "According to this conversation the cases are to be accepted by you as we receive them from our shippers but it is understood that such cases are to be in good condition and not any ramshackle packages." Brockman replied: "Yours of the 3d has been received and we confirm the conversation with Mr. Aaron in regard to the cases which are to be good cases and all poor or badly worn to be left out." Here the matter of the cases was suffered to drop with victory for Mr. Aaron who carried the point that second hand cases might be used.

A few days later Mr. Papendick wrote Mr. Aaron confirming his contract to sell Aaron 1000 cases "April current receipts to go to F. W. Brockman Commission Company at 14 1-2 cents incl. f. o. b. Kansas City," and in the letter expressed the optimistic opinion that "It will rain eggs for the next thirty days and there ought to be thirty or sixty cents profit in the sale to Brockman." This language was meant to convey the statement that there would be a profit to the vendors of from twelve to twenty-four hundred dollars, on the entire sale to Brockman.

Aaron shipped one of the ten cars to Brockman in April and attached the bill of lading to a sight draft for the purchase price. Brockman paid the draft and accepted the shipment. Aaron shipped no more eggs to Brockman nor did Papendick ship any to Aaron. Becoming fearful that Aaron intended to default in the performance of his contract, Brockman arrived in Kansas City in the morning of Saturday, April 29th. Fortunately for him, the manager of Armour & Company at St. Louis, a Mr. Volker, arrived in Kansas City on the same train. He was destined to play an important role in the events of the day. It is denied that Volker came to Kansas City by prearrangement. Brockman testified on cross-examination:

"We met possibly in the car going down but I didn't meet him on the train. That is after we left the station. Q. Didn't you go to town with him from the station? A. That's possible. Q. Didn't you have breakfast with him that morning? A. Quite likely. . . . Q. Wasn't he on the Exchange at the same time with you? A. Yes, sir. Now, wait a minute. I say yes, sir, but I am not certain about that. Q. Did you go to dinner with him after the Exchange? A. No, sir. I don't believe I did. I can't recollect. Those were incidents I paid no attention to."

The witness's recollection of mere social episodes was poor but it was good with respect to sterner events, not the least important of which was the timely intervention of Volker in a manner to disconcert Aaron and to give semblance of reality to the robust claim for damages Brockman was preparing to make. The encounters between Brockman and Aaron were characterized by keen and wary maneuvering. The final meeting occurred at Aaron's place of business at about six o'clock p. m. Volker was there--on the outside. Brockman demanded delivery of the nine cars of eggs as per contract. Aaron refused. Brockman testified:

"I notified Mr. Aaron if he did not deliver the eggs to me I would buy them for his account. He said, 'I don't care,' said several things."

Brockman then stepped out to Volker and, in the hearing of Aaron who was careful to keep in earshot, asked at what price Volker would sell him nine cars of current receipt eggs for delivery that day. Volker replied 15 1-4 cents per dozen. Brockman accepted the offer and gave his check to Volker for the purchase price. Armour & Company had enough eggs in storage to fill the order but made no actual delivery to Brockman and, some time later, Brockman "resold" the eggs to Armour & Company for just enough to cancel his check and pay accrued storage charges.

Using as a basis the price he was "compelled" to pay Volker for eggs, Brockman on May 3d, made out a claim for $ 810 damages, drew on Aaron for that amount and wrote Aaron asking him to "please protect same on presentation." Aaron refused to pay the draft and this suit followed. The position taken by Aaron was that Brockman had suffered no actual damages on account of the breach of contract for the reason that the market value of eggs in Kansas City on April 29th was 14 1-2 cents per dozen--the price agreed upon in the contract. Aaron says that when Brockman demanded a settlement on account of damages, he told him that he "would give him all that was coming to him," which was nothing.

To sustain his contention that the market price of "current receipt" eggs in Kansas City was only 14 1-2 cents, Aaron succeeded in introducing in evidence, over the strenuous objections of plaintiff, the market quotations for that day of the Produce Exchange of Kansas City. This "Exchange" was a voluntary association of local produce dealers. Quarters were maintained in a hotel; there was a blackboard in the room and an officer or employee was stationed at the board to chalk up current sales, bids, market quotations, etc. On April 29th, the actual sales of current receipt eggs listed on the blackboard were at prices ranging from 15 to 15 1-2 cents per dozen. The Exchange had an "egg committee" of three members who met at a stated hour each day and prepared market quotations. In fixing prices, this committee did not hold itself bound entirely by the actual sales and bids posted on the blackboard but treated such facts only as elements of the problem. Other elements considered were market quotations from other commercial centers, the foreign demand, the money market, etc.

After due deliberation the market prices then would be fixed at what the committee thought they should be, and these prices were published in a journal as the market prices for that day. We quote from the testimony of one of defendant's witnesses: "Q. You don't mean that this...