Jensen v. Turner Bros.
| Citation | 16 S.W.2d 742 |
| Decision Date | 29 April 1929 |
| Docket Number | No. 16400.,16400. |
| Parties | JENSEN v. TURNER BROS. et al. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Atchison County; John M. Dawson, Judge.
"Not to be officially published."
Action by N. P. Jensen against Turner Bros., a copartnership, and others. Judgment for plaintiff, and defendants appeal. Affirmed on condition of remittitur.
L. D. Ramsay and James F. Gore, both of Rockport, for appellants.
Hickman & Hoyne, of Hamburg, Iowa, and Henry B. Hunt, of Rockport, for respondent.
This is an action for the alleged conversion of 7,985 bushels of corn delivered by plaintiff from his farm in Atchison county, Mo., to defendants' elevator in Watson, in said county, on March 16, 1926. Plaintiff lived across the state line in Iowa, and defendants, who conducted a grain, coal, and lumber business in Red Oak, Iowa, had an elevator at Watson, Mo., in charge of one Charles Ramsay. Under authority from plaintiff to one Kiddoo, the corn was hauled to Watson on the day in question and delivered to defendants' elevator, where it was received by Ramsay, who paid the shelling and hauling charges of $439.17; and several days later delivered to Kiddoo, on a written order from plaintiff, a check for $1,716.78. The aggregate of these two payments, $2,155.95, represented one-half of the total value of the corn at 54 cents per bushel, the market price on March 16, 1926, the day of delivery of the corn. This written order (which was said to have been lost) was not produced at the trial; and there was controversy as to its contents. Plaintiff testified that it was merely to "give Kiddoo the check," and that Kiddoo had no authority to represent him any further whatsoever. Ramsay's testimony was that it read "Make settlement with Mr. Kiddoo for my corn." Kiddoo himself was not a witness at the trial. The extent of his authority to act as agent for plaintiff, beyond the mere delivery of the corn and the receiving of the check, and the things actually said and done under whatever agency he had, constitute the principal issues in the case.
The petition alleges plaintiff's ownership and possession of the corn, its deposit in defendants' elevator on the day in question, the agreement, on the same day, of plaintiff to sell and of defendants to buy same "at a date to be subsequently fixed by plaintiff at the price prevailing on said date," the cash advancement of $2,155.95 as a loan, to be deducted from the sum realized from the sale of the corn, and defendants' subsequent conversion of the corn by selling same without plaintiff's knowledge or consent, and the purchase with the proceeds of margins on the Chicago Board of Trade, in plaintiff's name, without his consent; and prays for damages for the value of the corn at its market value of 68 cents per bushel on September 25th, the alleged day of conversion, less the advancement.
The answer was a general denial; also an allegation that defendants purchased the corn on the day of delivery for its then market price of 54 cents, making a total purchase price of $4,311.90, which they then paid in full, by paying plaintiff one-half in cash, and retaining one-half at plaintiff's desire, to be disposed of as he should thereafter direct; and that he later, on the same day, directed them to purchase 8,000 bushels of corn for him, on the Chicago Grain Exchange, which they did in two successive transactions in accordance with his instructions, using plaintiff's balance in their hands to protect the sales; upon which transactions there was a net loss of $1,130, all as set forth in the answer, leaving $865.95 in their hands, for which they say plaintiff is entitled to judgment.
The evidence shows that defendants did in fact on March 17th purchase 8,000 bushels of July corn on the Chicago Board of Trade, on margin, at 81 1/8 cents per bushel. The purchase was in the name of defendants' firm, but was carried on their own books as for account of plaintiff. On June 30th, having received no additional funds from plaintiff, with which to meet delivery of the corn in July, they sold out for 67 cents a bushel, or at a total loss of $1,130. On July 2d they repurchased in the same manner 8,000 bushels of September corn at 75 cents, and similarly sold it on August 31st at the same price, 75 cents. The loss on the first purchase of $1,130, and their own commissions of $160, aggregating $1,290, they charged against plaintiff's balance in their hands, leaving $865.95, which they offer to pay.
Plaintiff denies having authorized the purchases on the board of trade, or any knowledge of them until defendants wrote to him offering to send him the balance in their hands.
The court refused peremptory instructions in the nature of a demurrer offered by defendants at the close of plaintiff's case and at the close of all the evidence. The instructions given submitted the issues under the pleadings, the questions of Kiddoo's agency and of ratification of his acts. There was a verdict and judgment for plaintiff for $2,272.38, from which defendants appeal, alleging five assignments of error.
I. Appellants' first and third assignments of error are that the verdict was against the evidence and the weight thereof, and that the court erred in refusing defendants' requests for peremptory instructions in the nature of demurrers to the evidence, and instructing the jury to return a verdict for plaintiff for $865.95 and no more. These requests involved the sufficiency of the proof of plaintiff's original claim, on the one hand, and of defendants' affirmative claim of partial payment, on the other.
The evidence showed that plaintiff did not deal with defendants directly at any time; that he authorized Kiddoo to deliver the corn and to receive the check; but as to Kiddoo's further agency there was a conflict in the testimony. It showed that defendants made the purchases on the board of trade on advice received from their local representative at Watson, who in turn claims to have been so instructed by Kiddoo.
Under the evidence the admitted delivery of the corn to defendants' elevator could conceivably have been under any one of three possible arrangements.
First. It might have been under a current sale at the then market price, as claimed by defendants, in which case defendants would acquire title, and would be liable only for the unpaid purchase price. That theory was claimed by defendants in their answer; but was repudiated by plaintiff, in whose testimony we find:
This testimony, if taken literally, is also inconsistent with plaintiff's theory of a present sale for a price to be determined later.
Second. It might have been under an ordinary bailment followed by a contract (if the elements were present making it binding as such) for a future sale to defendants at the market price at such future date. This contract is pleaded in the petition and claimed by plaintiff.
The evidence as to this alleged special contract consists only of plaintiff's testimony that he instructed Kiddoo to make such a contract, without more. Kiddoo did not testify, and Ramsay, the elevator manager, who received the corn from Kiddoo, denies such an understanding. There is no receipt or memorandum on the subject, and we must hold that there was an entire absence of evidence from which the jury might find either the making of such an alleged special contract, or of all the elements necessary to make it enforceable. If it were a present sale, for a price to be determined by future conditions or at a future date, this date must be designated or a time limit set, or a reasonable time understood. 35 Cyc. 104. In such case, however, it would seem that the present title would pass to the purchaser, and plaintiff's remedy would be on the contract for the unpaid purchase price and not in tort for conversion of the corn. If, on the other hand, the present title did not pass, the agreement would, as a contract, be void for uncertainty, lack of mutuality, and absence of consideration. At best, it would be merely a standing offer by the elevator owners to buy at any time at the then current price.
Third. It might have been an ordinary bailment, leaving the title in plaintiff, and the future disposition of the corn entirely at his discretion. The question then arises as to whether such a bailment was pleaded.
Paragraph 3 of the petition (following an allegation of ownership of the corn by plaintiff) reads as follows: "That afterwards, to-wit: on the same day plaintiff deposited said corn in defendants' elevator at Watson in the state and county aforesaid, and that on the same day plaintiff agreed to sell and the defendants agreed to purchase said corn at a date to be subsequently fixed by the plaintiff herein at the price prevailing on said date." Here are two distinct allegations. The first is as to the original deposit of the corn in defendants' elevator. Then follows the further separate allegation that on the same day the special contract for a future sale was entered into. This second allegation, which we have held was unproven in fact or in law, was, however, supplementary to and not inconsistent with the first allegation. The gist of the complaint under the petition is the alleged conversion, whether the bailment were a general or a special one, and we may exclude the second allegation as surplusage. Dalton v. Ry. Co., 187 Mo. App. 691, 173 S. W. 77. There then remains the allegations of the deposit of the corn in defendants' elevator, the advance of a loan thereon, the conversion by defendants, and their refusal to pay. There was evidence, if believed by the jury, to support the verdict on these allegations, if properly submitted.
II. Appellants claim that in any event the issues were not properly submitted, and their fourth assignment of error is in the giving by ...
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