Gratiot Street Warehouse Company v. Wilkinson
| Decision Date | 13 May 1902 |
| Parties | GRATIOT STREET WAREHOUSE COMPANY, Respondent, v. D. W. WILKINSON et al., Appellants |
| Court | Missouri Court of Appeals |
[Copyrighted Material Omitted]
Appeal from St. Louis City Circuit Court.--Hon. Jacob Klein, Judge.
AFFIRMED.
STATEMENT OF THE CASE.
This suit was commenced before a justice of the peace in the city of St. Louis on the following petition, omitting caption:
To the statement defendants filed an answer and counterclaim in three counts alleging two purchases of corn from the plaintiff and praying damages for plaintiff's alleged failure to deliver the corn purchased. The answer and counterclaim were dismissed in the justice's court and not relied on in the circuit court, to which the defendants appealed.
On trial in the circuit court, by the court without a jury plaintiff again recovered judgment, from which defendants duly appealed to this court.
The evidence discloses that appellants are wholesale grocers doing business in the city of Jackson, Mississippi, and dealers, also, in grain, by wholesale; that prior to the transactions out of which this suit arose, they had on divers occasions purchased corn by the carload from the respondent that on one or more occasions the customers of appellants had made demands on them for reclamations on account of corn purchased of them being unsound; that appellants had made good such losses to their customers and in turn had been compensated for the payments by the respondent.
On April 19, 1897, respondent, presumably in answer to a letter from the appellants asking reclamation on account of one of such losses, wrote the following letter:
Again on April 26, 1897 respondent wrote the appellants the following letter:
On April 29, respondent wired appellants as follows:
On the same day appellants wired respondent as follows:
On April 30, respondent wrote appellants as follows:
On May 1, but before the reception of respondent's letter of April 30, as appellants say, they wired as follows:
On the same day respondent by wire to appellants quoted "2 mixed corn at 38 cents, 2 white at 41 3-4." There is no answer in the record to this telegram by wire or letter, but respondent's evidence tends to prove a telegram was received from appellants of the same date and on which respondent booked 3,000 bushels No. 2 mixed corn at 38 cents as sold to appellants. The respondent shipped 3,000 bushels of corn on the order of April 29. The shipments were consigned to the order of respondent; to each of the freight bills it attached a draft drawn on appellants; the bills were indorsed by respondent and deposited in bank at St. Louis with instruction to forward to bank at Jackson, appellants to be notified. When the first car arrived, the appellants paid the draft drawn on them for the price of the corn, received the freight bill and took possession of the corn without first inspecting or having the privilege of inspecting it; the condition of the corn was unsatisfactory, of which they notified respondent and refused to receive or pay for any more of the shipments unless they were first allowed to inspect the corn in the cars. The respondent agreed to allow the inspection and so instructed the railroad freight agent at Jackson. As the other shipments arrived, the appellants inspected the corn and received and paid for all that was merchantable, but refused to receive the three carloads, for the loss of which the suit is brought.
The evidence tends to show the rejected corn when it arrived at Jackson was wet, mouldy and some of it rotten. After appellants refused to receive this corn, respondent, by its agent in Jackson, made sale of the corn on the best terms possible and sustained a loss of $ 425.82. The evidence is clear that two of the rejected cars were inspected at St. Louis by a state grain inspector, who gave a certificate that the corn was No. 2 mixed and there is also evidence tending to prove that the third one was likewise inspected by the same officer and he testified that the corn he inspected was No. 2 mixed and that corn which was graded as No. 2 on an inspection in the St. Louis market was sound and dry.
In addition to the evidence of the inspector, the evidence of respondent's employee who sacked the corn, an experienced man in handling and inspecting grain--was that the corn was sound and dry and reasonably clean when loaded into the cars. On the part of respondent, the evidence also tended to show that at the season of the year when the corn was shipped, corn is inclined to germinate, especially when in bulk and to become damp in a very few days, that the crop of corn for the year 1897 was generally imperfect and that it was very difficult to keep it dry and in good condition, after the germinating season.
On the part of appellants, the evidence tended to prove that No. 2 corn if dry would keep dry and sound for an indefinite time, that the cars in which the rejected corn was shipped were in good condition, and that corn could not have been made wet or damp from leakage in the cars.
In respect to the place of sale, Mr. Smith, the president of respondent testified as follows:
Other facts may need to be mentioned in the opinion.
The court on its own motion gave the following declaration of law:
"The court declares as a matter of law, the effect of the letters and...
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