Grovier Produce Co. v. T. C. Bottom Produce Co.

• Decision Date: 17 February 1919
• Docket Number: No. 13128.,13128.
• Citation: 209 S.W. 619
• Parties: GROVIER PRODUCE CO. v. T. C. BOTTOM PRODUCE CO.
• Court: Missouri Court of Appeals

209 S.W. 619

GROVIER PRODUCE CO. v. T. C. BOTTOM PRODUCE CO.

No. 13128.

Kansas City Court of Appeals. Missouri.

February 17, 1919.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

"Not to be officially published."

Action by the Grovier Produce Company against the T. C. Bottom Produce Company. Judgment for plaintiff, and defendant appeals. Affirmed, on condition of remittitur.

Moore, Smith, Aughinbaugh & Ault, of Kansas City, for appellant.

A. J. Bolinger and Hal. R. Lebrecht, both of Kansas City, for respondent.

ELLISON, P. J.

Defendant sold to plaintiff a carload of potatoes. About 147 bushels of them were discovered to be frozen. Plaintiff paid the full price, under an agreement with defendant that the latter would refund the price of those frozen. The complaint was in two counts. There was a finding for plaintiff on one count for $157.81, and on the other for $20. There is no complaint of the latter.

It seems that plaintiff residing in Hutchinson, Kan., purchased of defendant at Kansas City, Mo., a car of potatoes, and that he resold them to one Hawthorne at McPherson, Kan. When the car arrived at the latter place, Hawthorne discovered the frozen potatoes and immediately notified plaintiff, who in turn notified defendant. The testimony in plaintiff's behalf was that defendant "told me [plaintiff] to go ahead and pay his draft [for full amount of potatoes], have the railroad agent make a notation on the frieght bill showing the number of pounds of frozen potatoes in the car, and to get the man who was buying the potatoes from me to make an affidavit showing the number of pounds that were frozen and he would protect me."

The testimony in defendant's behalf was that, on plaintiff notifying him of the frozen potatoes, he told him:

"Well, go ahead and tell your man [Hawthorne] to resack the potatoes in the car, and have the agent check the delivery and get a notation from the agent, showing the amount of the bad ones, and have your man make an affidavit substantiating that fact, and we will protect you."

Defendant presented a demurrer to the evidence, which the court very properly overruled. We think there was no ground upon which to base a claim, as a matter of law, that a case was not made.

It will be noted that the chief difference between the two versions of the contract consists in the defendant saying that plaintiff was to have the agent "check the delivery of the potatoes and make a notation." Since the verdict was for the plaintiff, we must accept his version as the fact. The evidence showed that, while the agent did not "check" the potatoes, he did make the notation on the freight bill, required by the agreement as it was stated to be in plaintiff's testimony. He saw the potatoes in the car, and afterwards the frozen ones, when separated from the others. He accepted the weight given him by Hawthorne as correct, and made the notation on the freight bill as required. It seems to us that plaintiff's case was complete, and that the judgment should be affirmed, unless there be matters of error in rulings on evidence and instructions.

The chief, if not the only, complaint as to instructions cannot be noticed, since attention was not called to them in the motion for new trial. The motion reads that "the court erred in the instructions given to the jury at the instance of the plaintiff." This was not specific enough to sufficiently apprise the court of any ground of complaint. Wynne v. Wagoner Undertaking Co., 274 Mo. 593, 204 S. W. 15; Disinf. & Mfg. Co. v. Bates County, 273 Mo. 300, 201 S. W. 92; State v. Rowe, 271 Mo....