Hunter v. Helsley

• Decision Date: 06 April 1903
• Citation: 73 S.W. 719,98 Mo.App. 616
• Parties: J. M. HUNTER, Respondent, v. GEORGE E. HELSLEY, Appellant
• Court: Kansas Court of Appeals

73 S.W. 719

98 Mo.App. 616

J. M. HUNTER, Respondent, v. GEORGE E. HELSLEY, Appellant

Court of Appeals of Missouri, Kansas City

April 6, 1903

Appeal from Benton Circuit Court.--Hon. W. W. Graves, Judge.

AFFIRMED.

Judgment affirmed.

Lay & Lay for appellant.

(1) Evidence of an unexecuted compromise between the parties is not admissible for any purpose; nor are hypothetical or provisional estimates made during an attempt to settle differences. Wright v. Gillespie, 43 Mo.App. 244; Huittman v. Viesselman, 48 Mo.App. 582. (2) The court erred in permitting Hunter to testify that he "expected a thousand dollars worth of shoes from Chicago would weigh from 3,000 to 5,000 pounds," because: (a) He had not shown himself qualified to testify as an expert. Marshall v. Bingle, 36 Mo.App. 122. (b) The weight of the shoes was not a matter to be established by expert or opinion evidence, being a fact susceptible of definite proof and upon which the jurors were competent to form an opinion. Shoe Co. v. Bain, 46 Mo.App. 581. It appears from the testimony of the witness that his estimate was a mere "guess." Muller v. Gillick, 66 Mo.App. 500.

W. S Jackson for respondent.

(1) While the defendant testified that the conversation objected to occurred during an attempt to compromise, the plaintiff testified that such was not the fact, and stated further that he was simply demanding the amount due him from defendant and trying to collect it from him, and further testified that defendant, at the time of this very conversation helped to adjust the amount of freight by himself and his agent and clerk, Brunz. And the trial court very properly remarked that under this state of the testimony, "The question as to whether they were trying to compromise or not was one for the jury," and so instructed them. (2) It was not error for the court to permit Hunter, and the other witnesses for plaintiff, to give their respective opinions as to the rate of freight and to the weight of different parts of the stock of goods. Coughlin v. Haeusler, 50 Mo. 126; Crabtree v. Vanhoosier, 53 Mo.App. 405; Rankin v. Rankin, 61 Mo. 295. (a) The admission of expert testimony is a question for the court in the first instance and is conclusive unless it appears to have been erroneous or founded on error of law. Hampton v. Masse, 53 Mo.App. 501; Benjamin v. Railroad, 50 Mo.App. 602. (b) None of the witnesses for the plaintiff who gave their opinions as to the weights of the stocks were, strictly speaking, experts; they were giving their best judgment as to weights, value, etc., of the stock of goods with which they had worked and with which they were personally familiar, and it was competent for them to give their opinions on these points having shown such qualifications, whether they be regarded as experts, or not. 1 Greenleaf on Ev., sec. 440; Turner v. Haar, 114 Mo. 335; Seyfarth v Railroad, 52 Mo. 449; Costigan v. Transfer Co. 38 Mo.App. 219.

OPINION

SMITH, P. J.

--The plaintiff and defendant entered into a written contract by which plaintiff agreed to take from defendant a farm valued at $ 18,000 and to give in exchange therefor certain other real estate valued at $ 4,600 and also a stock of merchandise, the latter "at cost and freight added." The transaction to which the contract related was completed except the plaintiff insisted that the defendant had refused to pay him the freight on said stock of merchandise, as he had bound himself to do. And based upon this alleged breach of the contract, this action was begun before a justice of the peace to recover the amount of freight so claimed. In the circuit court, where the cause was removed by appeal, there was a trial by a jury whose verdict, under instructions impliedly admitted to have been correct in expression, was for the plaintiff. It is conceded that the contract heretofore referred to was entered into and that the defendant has paid nothing for freight on said stock of merchandise. The defendant in effect admits his liability to the plaintiff under said contract, but contends that under some oral agreement entered into between the plaintiff and himself, the plaintiff is indebted to him (defendant) for the discount which he (plaintiff) received on the cost price of goods by reason of paying cash therefor, in an amount equal to that for which plaintiff sued.

No statement of any set-off or counterclaim was filed before the justice, as required by sections 3852, 4078, Revised Statutes, and therefore that defense was not available in the trial court. McCormick v. Crawford (just decided by us); West v. Freeman, 76 Mo.App. 96; Stephens v. Supply Co., 67 Mo.App. 587; Gantt v. Duffy, 71 Mo.App. 91. And besides this, the abstract nowhere discloses any evidence whatever which in the least tends to prove that the plaintiff ever received any discount whatever on any purchase of goods so that defendant's defense was wholly unproved. Whether such a defense was submitted by the instructions to the jury does not appear--the instructions not being preserved by the bill of exceptions--nor is it material to inquire.

It is no doubt true that the admission implied by the nature of the defense interposed by the defendant did not bind him and, therefore, the question remains whether or not the plaintiff adduced sufficient evidence to support the verdict. The obligation imposed on defendant by the contract to pay plaintiff, as a part of the purchase price of the goods, the amount of his outlay for the freight, or the cost of carriage thereon, from the place of purchase to that where the sale was made, is conceded, so that the plaintiff, to make out his prima facie case, was only required to prove the amount of such outlay or some part thereof.

It appears from the evidence that the value of the goods which the plaintiff transferred to defendant was seven thousand dollars, and that the same were purchased by plaintiff in Chicago, Cincinnati, St. Louis and Jefferson City. That the freight paid on those purchased at the last two places was sixty-five cents per hundred. The first two are cities located in other States and we may know are more distant than the...