Harvey v. Blue Oak Handle Co.

• Citation: 279 S.W. 155
• Decision Date: 05 January 1926
• Docket Number: No. 19266.,19266.
• Parties: HARVEY v. BLUE OAK HANDLE CO.
• Court: Missouri Court of Appeals

279 S.W. 155

HARVEY v. BLUE OAK HANDLE CO.

No. 19266.

St. Louis Court of Appeals. Missouri.

January 5, 1926.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Action by G. R. Harvey against the Blue Oak Handle Company. Verdict for plaintiff. Prom order granting new trial, plaintiff appeals. Affirmed, and cause remanded.

Frank J. Duvall, of Clarksville, and May & May, of Louisiana, Mo., for appellant.

Hostetter & Haley, of Bowling Green, for respondent.

BECKER, J.

This is an appeal from an order granting defendant a new trial.

Plaintiff owns and operates a sawmill in Arkansas, and brought suit against the defendant corporation located at Bowling Green, Mo., which is engaged in the manufacture of axe, sledge, and hammer handles, for an alleged balance due him on four carloads of axe, sledge, and hammer handle blanks shipped by him to the defendant company. The defendant pleaded a general denial, also a counterclaim, in which it set up that, whilst it did in fact order certain axe and sledge handle blanks from plaintiff, a large percentage of the blanks shipped it by plaintiff did not measure up to the agreed grades, but were mere culls, and of no value, and, further, that said shipments contained a large number of hammer handle blanks which the defendant had not purchased, and prays for judgment for the alleged resulting damages.

The case was tried to a jury, who returned a verdict for plaintiff on his cause of action for the full amount pleaded for, and found against defendant on its counterclaim.

The defendant filed a motion for a new trial which the court sustained on the ground that the giving of instruction numbered 1 for the plaintiff was error. From this ruling of the court plaintiff perfected his appeal. The sole question for our consideration is, therefore, whether the trial court erred in granting defendant a new trial.

After a careful reading of the entire record before us, we have come to the conclusion that the giving of plaintiff's instruction numbered 1 was error, prejudicial to the rights of the defendant. Said instruction reads as follows:

"The court instructs the jury that, if you believe from the evidence that plaintiff shipped to defendant, and that defendant received from plaintiff, the four carload lots of material alleged in plaintiff's petition at the prices set out in plaintiff's petition, and that the total prices charged by plaintiff for said shipments amounted to $4,576.63, and that defendant has paid plaintiff on said shipments a total of $2,789, then your verdict should be in favor of the plaintiff for not to exceed $1,787.63, to which you may add interest at the rate of 6 per cent. per annum from September 30, 1924."

Under defendant's general denial the burden was on plaintiff to prove, not alone that the defendant "received" the goods, but that it "accepted" them. This is conceded by appellant here (plaintiff below). It will be observed that the instruction in question on this point merely requires that the jury believe and find "that defendant received from plaintiff the four carload lots of material." But appellant contends that the words "received from plaintiff" used in the above instruction are the equivalent to "receive and accept," and must have been understood by the jury so to mean. In support of this contention appellant quotes Funk & Wagnalls' Standard Dictionary to the effect that "rece...