Hoskins v. The Missouri Pacific Ry. Co.

• Decision Date: 09 November 1885
• Citation: 19 Mo.App. 315
• Parties: CHARLES HOSKINS, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Kansas Court of Appeals

19 Mo.App. 315

CHARLES HOSKINS, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

November 9, 1885

APPEAL from Henry Circuit Court, HON. JAMES B. GANTT, Judge.

Reversed and remanded.

The material facts are set forth in the opinion of the court.

ADAMS & BOWLES, for the appellant.

I. The court erred in admitting the account of sales from his commission men, of the cattle shipped. It was no legal proof of the value of the stock at St. Louis, or of their weight. The court erred, also, in admitting the report of Campbell Lancaster & Co., as to sales of the stock. It is not a general market report, but only a private communication or circular letter, from one commission house. R. R. Co. v Johnson, 42 Ala. 242; 1 Greenl. Evid., sect. 124; Fougue v. Burgess, 71 Mo. 389; Woods v Hicks, 36 Mo. 326; Chouteau v. Searcy, 8 Mo. 375; Cable v. McDaniel, 33 Mo. 363; Langdorf v. Field, 36 Mo. 440.

II. The court erred in rejecting the contract of shipment offered in evidence by defendant. It was the contract of the parties, and it is immaterial, no fraud being shown, that the plaintiff did not read or understand it. Ry. Co. v. Cleary, 77 Mo. 634, and cases cited.

M. A. FYKE, for the respondent.

I. This action was brought to recover damages occasioned by reason of the failure of defendant to provide cars for the shipment of plaintiff's stock at the time defendant agreed to furnish sad cars.

II. The case is exactly like the case of Harrison v. The Mo. Pac. Ry. Co. (74 Mo. 364), upon which case plaintiff relies for an affirmance of the judgment.

III. The market reports read in evidence were properly admitted, Thursteen v. Champayne, 3 Wallace (U. S.) 149; 1 Greenl. Evid., sect. 126.

HALL J.

This is an action begun before a justice of the peace, upon a verbal contract, for the failure of defendant to deliver cars for the transportation of stock on the day agreed upon in the contract. The statement in this case is, in all essential respects, the same as the petition in the case of Harrison v. The Mo. Pacific Railway Co. (74 Mo. 364).

Judgment by default was rendered against the defendant. The defendant appealed to the circuit court.

During the trial the plaintiff in testifying said, among other things: " My commission men gave an account of sales, which shows the weights of my stock." Against the defendant's objections the court permitted the plaintiff to introduce in evidence the said account of sales, which is as follows:

" Sales by CAMPBELL, LANCASTER & CO.

Sold for account of C. N. Hoskins:

Date. Cattle. Hogs. Weight. Dock. Price. Amount.

January 26, 39 .. 47,580 .. $4 90 $2,331 42

January 26, .. 25 4,930 20 6 20 304 42

January 26, .. 35 10,210 80 6 30 638 19

Total............................................... $3,274.03

CHARGES.

Freight and back charges $144 00

Yardage 13 30

Hay 6 00

Corn 2 00

Commission 24 50

Net proceeds 3,084 23 $3,274 03."

For plaintiff Z. B. Moore testified: " I am agent at Clinton, Missouri, for the firm of Campbell, Lancaster & Company, live stock commission merchants at East St. Louis, and they forward me reports of the market each day. They forwarded me the following report of the market for January 26, 1883:"

Which report the court, against defendant's objection, permitted the plaintiff to introduce in evidence. Sufficient of the report is here copied to indicate its character:

" CAMPBELL, LANCASTER & CO.,

LIVE STOCK COMMISSION MERCHANTS.

NATIONAL STOCK YARDS, ILL, )

Friday, Jan. 26, 1883, 3 p. m. )

Receipts past 24 hours 1,250 cattle; 3,150 hogs; 1,520 sheep.

Cattle, heavy shipping steers are slow and from 10c. to 15c. lower than yesterday. Medium weight steers are about 10c. lower and slower, but light shipping steers are fairly active, and only a shade lower. Coarse, uneven cattle are irregular and dull. Butchers' cattle ruled fairly active and steady. There is a good inquiry for fresh milch cows.

FOLLOWING ARE REPRESENTIVE SALES TO-DAY:

13 Mixed Butchers 873, $4 00 17 Native Steers 1365, $4 45

16 Native Butchers 944, 4 25 15 Native Steers 1028, 4 60

12 Native Cows 838, 3 75 14 Native Bulls 1403, 3 65

10 Southwest Steers 940, 4 00 14 Native Steers 1192, 4 80

37 Native Butchers 1043, 4 35 13 Native Steers 1432, 5 30

18 Native Steers 1131, 4 80 24 Native Steers 1377, 5 50

17 Native Steers 994, 4 60 17 Native Steers 1277, 5 10

17 Native Steers 1238, 4 70 29 Native Steers 1152, 4 55

14 Native Cows 972, 3 37 34 Native Steers 1360, 5 50

27 Native Steers 1276, 5 05 21 Native Steers 1049, 4 75

32 Native Steers 1179, 4 96 57 Native Steers 1008, 4 75

39 Native Steers 1220, 4 90 19 Native Steers 1171, 4 70

The defendant offered in evidence the written contract for the shipment of the stock, afterwards made by it with the plaintiff; upon objection by plaintiff the court refused to permit defendant to introduce the contract in evidence.

From a judgment in favor of plaintiff the defendant has appealed to this court. In this court defendant complains of the rulings made by the court below, as to the admissibility of the testimony mentioned.

I.

We are unable to see any ground on which it can be maintained that the " " account of sales," sent to plaintiff by his commission men is admissible testimony. It was clearly hearsay testimony and inadmissible. The fact that the " account" was in writing did not change its character. Had it been made verbally to the plaintiff it would have been hearsay; and the plaintiff could not have repeated it to the jury. O'Neil v. Crain, 67 Mo. 251; Fogue v Burgess, 71 Mo. 389; Cable v. McDaniel, 33 Mo. 363; Wood v. Hicks, 36 Mo. 327; Langsdorf et al. v. Field et al., 36 Mo. 441. Had the facts, stated in the " account," been stated in the form of a receipt given to plaintiff by his commission men, the receipt would have been hearsay and inadmissible. State v. Sutton, 64 Mo. 111. There is nothing in the record to show...