J. T. Fargason & Co. v. Coleman

• Decision Date: 05 May 1925
• Docket Number: No. 18911.,18911.
• Citation: 272 S.W. 1003
• Court: Missouri Court of Appeals
• Parties: J. T. FARGASON & CO. v. COLEMAN.

272 S.W. 1003

J. T. FARGASON & CO. v. COLEMAN.

No. 18911.

St. Louis Court of Appeals. Missouri.

May 5, 1925.

Appeal from Cape Girardeau Court of Common Pleas; John A. Snider, Judge.

"Not to be officially published."

Action by J. T. Fargason & Co. against V. W. Coleman. From a judgment in favor of defendant on his counterclaim, plaintiff appeals. Reversed and remanded.

George W. Barham, of Blytheville, Ark., and Ward, Reeves & Oliver, of Caruthersville, for appellant.

BRUERE, C.

Action to recover a balance of $1,550.74, on an account growing out of a consignment of cotton by the defendant to the plaintiff for sale on commission.

At the dates herein mentioned, the plaintiff was a cotton factor in Memphis, Tenn., and the defendant was a farmer, who lived in Pemiscot county, Mo. During the months of January and February, 1920, the defendant consigned to the plaintiff 54 bales of cotton, to be sold by the plaintiff, on the Memphis, Tenn., market, for the account of the defendant. At the same time the defendant drew his drafts on the plaintiff for $5,325, as advances on the cotton consigned, which drafts were paid by the plaintiff before it received the cotton.

The consignment was made generally, without any specific orders as to the time or mode of the sale of the cotton, and no orders as to the time of sale were given by the defendant to the plaintiff.

The plaintiff sold the cotton for $4,331.74, and prays judgment for $1,550.70, being the difference between its advances and charges and the amount realized from the sale of the cotton.

In his answer, the defendant set up a counterclaim, in which it was alleged that the plaintiff did not exercise good faith and diligence in the sale of said cotton, and failed to sell said cotton within a reasonable time after receiving the same in Memphis, Tenn.; that at the time said cotton arrived in Memphis, Tenn., and for a long period of time thereafter, said cotton was reasonably worth, on the market in Memphis, Tenn., from 35 to 70 cents per pound; and that, had plaintiff exercised good faith and diligence in the sale of said cotton, it could have sold said cotton for an average of not less than 50 cents per pound, and defendant asked, therefore, a judgment against plaintiff for the sum of $9,156.68. The reply was in the nature of a general denial.

On a trial before a jury, there was a verdict and judgment in favor of the plaintiff on its account stated in the sum of $1,554.74, and for the defendant on the defendant's counterclaim in the sum of $1,550.74, and the plaintiff appealed.

The defendant has filed no brief in this cause. The plaintiff assigns as error the action of the court in giving defendant's instruction No. 1, which told the jury that, if they believed from the evidence the plaintiff did not make diligent efforts to sell said cotton within a reasonable time after the cotton was shipped to plaintiff, and further believed and found from the evidence that the plaintiff, by diligent efforts to sell said cotton, within a reasonable time after said cotton was shipped to plaintiff, could have sold same on the market in Memphis, Tenn., for a fair market price, and for an amount in excess of the advances, interest, and charges sued for herein, then the defendant was entitled to recover from the plaintiff the difference between the amount so advanced, in"eluding said interest and charges, and the amount for which said cotton could have been sold. There was no evidence adduced upon which the plaintiff could be charged with a breach of duty in selling the cotton at the time it did, and for the price which was obtained.

Inasmuch as the cotton was consigned without any instruction as to the time and manner of sale, the plaintiff was clothed with the ordinary rights of factors to sell in the exercise of a sound discretion for his reimbursement, at such time and in such manner as the usage...