Martin v. Wiglesworth

• Decision Date: 05 March 1917
• Docket Number: No. 12286.,12286.
• Parties: MARTIN v. WIGLESWORTH.
• Court: Missouri Court of Appeals

193 S.W. 906

MARTIN v. WIGLESWORTH.

No. 12286.

Kansas City Court of Appeals. Missouri.

March 5, 1917.

Rehearing Denied April 2, 1917.

Appeal from Circuit Court, Jackson County; Hon. O. A. Lucas, Judge.

"Not to be officially published."

Action in justice court by M. A. Martin, assignee of G. D. Sleeper, against Ed Wiglesworth. On appeal and trial de novo in circuit court, judgment was rendered for plaintiff, and defendant appeals. Affirmed.

Noyes & Heath, of Kansas City, for appellant. Thomson, Davis & Holmes, of Kansas City, for respondent.

TRIMBLE, J.

This action was commenced in a justice court. It was brought by G. D. Sleeper against the defendant to recover damages because of the latter's alleged breach of an oral contract to buy a carload of stock hogs at Waggoner, Okl. Upon appeal from the justice to the circuit court the cause was tried de novo, resulting in a verdict and judgment against the defendant in the sum of $422.91. The defendant thereupon appealed to this court. Shortly thereafter Sleeper assigned the judgment to M. A. Martin and died. By stipulation filed herein it was agreed that Martin, as assignee of said judgment and the real party now in interest, might be substituted in the place of Sleeper as the respondent herein.

The defendant, at Kansas City, received a telegram from Sleeper at Waggoner, Okl., offering to sell him a carload of stock hogs at 6 cents per pound. Defendant sent his agent, Sturdy, to look at the hogs. When he arrived he found that Sleeper did not have but 90 hogs, which was not sufficient to make a carload, it taking about 130 or 140 such hogs to make a carload of the minimum weight of 17,000 pounds. As the freight on a part of a car was as great as on a full car, defendant wanted a full carload. And it was agreed between Sleeper and defendant's agent, after examining Sleeper's hogs, that enough additional hogs would be obtained from Sleeper's neighbors at 6 cents to make up a carload. They examined some hogs of a neighbor by the name of Jones, and by agreement Sleeper bought them and placed them with his hogs, but still lacked enough to make the carload, and Sturdy told plaintiff to get certain other hogs from two other men, Miller and Walker. The hogs were to be delivered in the stock pens at Waggoner, and the sale was to be for cash. According to plaintiff Sleeper's evidence, all of the hogs, his own as well as those of Jones and also of Miller and Walker, were placed in the pens on Monday, and Sturdy was present and saw them, and also observed their count and weight. According to said evidence he also made arrangements to care for said stock. According to Sturdy's evidence, only Sleeper's and Jones' hogs were delivered to the pens on Monday and the Miller and Walker hogs were not brought in till late in the night after he had left the pens, and he did not see the latter hogs till Tuesday morning. (Sleeper paid the owners of the additional hogs the purchase price due them therefor.)

On Tuesday morning, the full carload having been assembled and Sleeper having obtained the weight of the last bunch of hogs brought in, the Miller and Walker hogs, Sleeper demanded of Sturdy payment for said hogs at the agreed price of 6 cents per pound. Sturdy refused to pay, saying he would not take the hogs because some of them were sick with the cholera. The hogs were in the pens ready for shipment, but as Sturdy would not take them nor pay for them, Sleeper notified him that he would hold defendant in damages on the contract, and would sell the hogs for the best price obtainable and look to defendant to make good any loss sustained. The defendant's agent, Sturdy, still refusing to do anything, Sleeper advertised the hogs for sale, and sold them at public auction for the best price obtainable, notifying Sturdy beforehand of the sale. At said sale Sturdy bought said hogs for much less than he had agreed to pay for them in his oral agreement with Sleeper. He says he did not buy them at the auction sale for defendant, but for a man by the name of Moore in Kansas City, whom he did not know, but who telephoned him to buy them for him.

The defendant pleaded the Oklahoma statute of frauds, which renders invalid any oral contract for the sale of personal property of the price of $50 or upwards. But the fourth clause of said statute (section 941, R. L. Ann. Okl. 1910), takes such a contract out of the statute if the buyer either receives or accepts a part of the property. In this respect the Oklahoma law...