Merle & Co. v. Hascall

• Decision Date: 31 January 1847
• Citation: 10 Mo. 406
• Court: Missouri Supreme Court
• Parties: MERLE & CO. v. HASCALL.

10 Mo. 406

MERLE & CO.

v.HASCALL.

Supreme Court of Missouri.

January Term, 1847.

ERROR TO RALLS CIRCUIT COURT.

MCBRIDE, J.

Hascall commenced his action in assumpsit by attachment against J. A. Merle & Co., in the Ralls Circuit Court, to the June term, 1843. The declaration contains several counts. The first, being the one upon which a recovery is sought, avers that the defendants “were trading and doing business as general factors, agents or commission merchants, in the sale of goods, wares, merchandise, &c., for a certain commission, per centage or reward, and thereupon, afterwards, on the 13th November, 1838, at New Orleans, that is to say, at the county of Ralls, aforesaid, in consideration that the said plaintiff, at the special instance and request of the said defendants, had employed the said defendants as his factors or agents, to sell and dispose of 100 barrels of superfine flour, of great value, to-wit: of the value of $500, for a certain commission, reward or per centage thereon, to be therefor paid to the said defendants by the said plaintiff; they, the said defendants, undertook, and then and there faithfully promised the said plaintiff to sell and dispose of the 100 barrels of flour and said horses, at and for the best prices and advantageous terms for the said plaintiff, that they, the said defendants, could get and procure for the same; and although the said defendants afterwards, that is to say, on the 25th day of November, 1838, at the county aforesaid, sold and disposed of the said flour and pair of horses, yet did not sell and dispose of the same at the best prices and upon the most advantageous terms for the said plaintiff that they, said defendants, could get and procure for the same, according to the said promise and undertaking, but omitted and neglected to do so, and disposed and sold the said flour and pair of horses at much less than they might and could have got and procured for the same, that is to say, &c.

The defendants filed their plea of non-assumpsit, and neither party requiring a jury, the issue was submitted to the court, when the court found for the plaintiff and assessed his damages to the sum of $297. Thereupon the defendants moved in arrest and for a new trial, assigning their reasons therefor, which being overruled they excepted and now bring the case here by writ of error, and seek the reversal of the judgment of the Circuit Court.

We are aware of the repeated decisions of this court showing a very decided disinclination to interrupt the verdict of a jury where the whole case has been submitted to a jury, or the judge sitting as a jury, and no question of law has been presented to or passed upon by the court. A finding, under such circumstances, affords to this court no certain light to guide them in an attempted review of the action of the jury, as we are not advised whether the verdict was the result of a misconception of the evidence or a misapplication of the law to the evidence, or a misapprehension of the law governing the case. In either of the two former cases the law has wisely vested the power in the circuit judge to correct the error by granting to the party aggrieved a new trial.

The case now before us, we think, is clearly distinguishable from the cases referred to as having been decided by the court, as will be shown by an examination of the declaration and the evidence adduced upon the trial.

The sixth reason assigned in the defendant's motion for a new trial, is the only one which we propose now to examine, and is in the following words: “6th. The evidence does not support the declaration.”

The evidence introduced upon the trial conduces to show that about the time of the arrival of the plaintiff's flour at New Orleans, flour was worth from twelve to sixteen dollars per barrel, owing to the scanty supply in market and the low stage of the water in the rivers; that about this time it commenced falling rapidly, at the rate perhaps of two dollars per day, owing to the rise in the rivers and the large quantity which was being daily received, until it went down to five or six dollars per barrel. The boat...