Long v. Rogers
| Decision Date | 15 February 1945 |
| Docket Number | No. 6518.,6518. |
| Citation | 185 S.W.2d 863 |
| Parties | LONG v. ROGERS. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Howell County; Gordon Dorris, Judge.
Action by Homer Long against John D. Rogers to recover the balance due for corn purchased from plaintiff by defendant, who filed a counterclaim for breach of contract. From a judgment on a jury's verdict for plaintiff and counterclaimant in equal sums, plaintiff appeals.
Affirmed.
Green & Green, of West Plains, for appellant.
W. D. Roberts and A. W. Landis, both of West Plains, for respondent.
This cause originated in Justice Court in the City of West Plains, upon the filing of a petition by plaintiff wherein he alleged that defendant was indebted to him in the sum of $36, balance due for corn purchased. To this petition defendant filed his answer and counter claim, first denying "each and every allegation in said complaint contained;" and for further answer and for his counter claim alleged that plaintiff sold him 300 bushels of corn at $1 per bushel, but only delivered 161 bushels and refused to deliver the balance, to defendant's damage in the sum of $40. From a judgment in favor of plaintiff in the Justice Court the defendant duly appealed to the Howell County Circuit Court where the cause was again tried before a jury resulting in a verdict for plaintiff for $36 and for defendant on his counter claim in the sum of $36. Judgment was entered in conformity to these verdicts and plaintiff duly appealed to this Court.
Plaintiff's evidence tended to show that he went to the home of defendant in the month of December, 1942, for the purpose of selling him some corn; that plaintiff told defendant that he might have 300 bushels of corn, more or less, and that he would let him have all that he had to spare; that he would deliver it if he could get a truck for $1 per bushel; that after approximately 160 bushels had been delivered to defendant plaintiff found he had no more corn to spare and so notified defendant by letter dated March 8, 1942; that at that time defendant still owed plaintiff $36 on corn previously delivered.
Defendant, testifying in his own behalf, denied that plaintiff correctly stated the contract. He stated that Long came to his place and wanted to sell him some corn; that he said he would sell him 300 bushels and said nothing about letting him have 300 bushels if he could spare that much; that defendant agreed to take the 300 bushels of corn, gave plaintiff a check for $100 and wrote on the margin thereof "part payment on 300 bushels of corn," and said to Long at the time: "I wrote this check out this way to show what I have bought and what you have sold," to which Long replied, "That is all right." After that Long said: "When I weigh it up on the scales it might run a little over or a little under" and that defendant said, "If it runs over a little I will pay you for it and if it is just a little under we will make it all right." Long was to deliver the corn to defendant at $1 per bushel; that he delivered 80 bushels and 68 lbs. about the first of February. Later he said:
Defendant further testified that he sent Robert Douglas after a load, it being 79 bushels and 60 lbs.; that he offered Long more money at that time but he said to just wait until he got the rest of the corn; that after that he met him at the sales barn and asked him how much he wanted and that Long said $20 and he gave him a check for that amount. Later he received a letter from Long, dated March 8, 1942, stating in substance that he had let him have all the corn he could spare.
Defendant's wife and his son, Charlie, corroborated the testimony of defendant in important particulars. Other testimony showed the price of white corn at West Plains, Missouri, was $1.25 per bushel on the day defendant received the letter from plaintiff. On rebuttal plaintiff specifically denied much of defendant's evidence.
Plaintiff's Assignment of Errors, briefly stated, are as follows:
(1) There was no evidence to support the verdict for $36 on defendant's counter claim;
(2) The Court erred in refusing to require the jury to retire for further deliberation after it appeared they did not understand the verdict as returned;
(3) That the Court erred in giving Instructions Numbered Two, Three and Five, on the part of defendant.
From an examination of plaintiff's Points and Authorities and his argument it appears that he has abandoned his first and second assignments of error and we will so treat them. This leaves for our consideration the assignment leveled at the Instructions.
In determining the merit of plaintiff's challenge to the instructions it must be borne in mind that the cause was tried on the theory that there was a parol agreement between plaintiff and defendant: Plaintiff's contention being that he sold defendant 300 bushels of corn, or so much as he might have to spare, and defendant's contention being that plaintiff sold him 300 bushels of corn. Each were entitled to instructions submitting his theory to the jury.
Plaintiff contends that the court erred in giving Instruction Number Two at the request of defendant since it was a departure from the cause of action stated in plaintiff's petition and defendant's counter claim; that it is a comment upon the evidence and assumes the contract was different to that claimed by either party and is in direct conflict with plaintiff's Instruction "A"; and that it is further erroneous because it instructed the jury they should find for the defendant if he was ready and willing to pay for the corn without requiring a finding that defendant was able to pay for same; and that it assumes defendant was damaged and takes that issue away from the jury.
We do not deem it necessary to set the instructions out in full. It is sufficient to say that the contention that the "Instruction is a...
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