N.W. Helm Feed and Coal Company v. Butler County Milling Co.
| Decision Date | 06 March 1925 |
| Citation | 269 S.W. 630,218 Mo.App. 290 |
| Parties | N. W. HELM FEED and COAL COMPANY, Appellant, v. BUTLER COUNTY MILLING COMPANY, Respondent. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Butler County.--Hon. Almon Ing Judge.
AFFIRMED.
Judgment affirmed.
Ward Reeves & Oliver, of Caruthersville, for appellant.
(1) This was an executed contract, title to corn passed when car was loaded F. O. B. the cars at Caruthersville, Missouri. Defendant accepted same, first, by the instructions it gave to the plaintiff in directing the shipment to it at Giles Spur, Arkansas, via Poplar Bluff, and second, by a resale of the corn to a third party. Neal v. Cunningham Store Company et al., 160 Mo.App. 514; Turner Looker v Hindman et al., 232 S.W. 1076; Blooms Sons v. Haas, 130 Mo.App. 125; Hoffman v. Wisconsin Lumber Co., 229 S.W. 289. (2) This contract being fully executed it was error on the part of the trial court to permit testimony as to the value of the corn at any point other than the place where the contract was consummated and at the time it was consummated. All of the witnesses that testified for defendant on this point testified to the value of the corn at Giles Spur, Arkansas, or Newport, Arkansas, at a time several weeks and in some instances several months later than the date of the contract. Blooms Sons v. Haas, 130 Mo.App. 125; Neal v. Store Company, 160 Mo.App. 513. (3) It was error to instruct that the measure of damages on the part of the defendant was the "difference between the price that the defendant agreed to pay plaintiff for said corn and the price the defendant agreed to sell said corn to said third party." The correct measure of damage, if defendant was damaged, at all, was the difference between the price defendant agreed to pay plaintiff and the reasonable market price of said corn at the time and place the contract was made. Neal v. Store Company, 160 Mo.App. 513; Black River Lumber Co. v. Warner, 93 Mo. 274; Weber Motor Car Company v. Roberts (cases cited thereunder), 203 Mo.App. 518. (4) The trial court erred in giving defendant's instruction number one which covered the entire case on behalf of the defendant, because this instruction and particularly the following: "And as a result thereof, the third party to whom defendant had contracted said load of corn, refused to receive and accept same;" is a comment on the testimony. Moody v. Cowherd, 199 S.W. 587; Rice v. Jefferson City Bridge Company, 216 S.W. 751; Miller v. Busey, 186 S.W. 983; Barr v. Kansas City, 105 Mo. 550.
Sam M. Phillips, of Poplar Bluff, for respondent.
(1) The contract in this case was never executed as claimed by appellant. The defendant ordered from the plaintiff a car of "nice corn," which expression has a definite meaning among grain merchants. The plaintiff never loaded a carload of "nice corn," but to the contrary loaded a carload of worm eaten, trashy, rotten, unwholesome corn. This was not an execution of the contract between plaintiff and the defendant and this act upon the part of the plaintiff did not make of the contract an executed contract. 35 Cyc., 189 and cases cited. (2) Appellant builds his point 2 upon the crumbly foundation of his point 1. He takes the position in point 1 that this was an "executed contract" and then he builds his argument in point 2 on that as a basis. There are several things the matter with point 2 of appellant's brief. In the first place the facts therein recited are not borne out by the record in this law suit. Appellant says at this point that the trial court permitted witnesses to testify as to the value of the corn at Giles Spur. This is a misconception of what the testimony was. The testimony did not show the value, but showed the condition of the corn when it arrived at Giles Spur. The testimony of the condition at Giles Spur four, five six or seven days after this corn was shipped from Caruthersville, was certainly within such time that there was a strong presumption that the condition of the corn at Giles Spur was its condition when it was loaded on board cars at Caruthersville, as the expert testimony that was not contradicted showed that the corn could not have gotten in the condition it was at Giles Spur within six days or such a matter. This testimony was clearly competent. (3) If there was any error in defendant's instruction as to the measure of damages on behalf of the defendant, on defendant's counterclaim, that error would be absolutely harmless for the reason that the jury found against the defendant on the counterclaim. Schafer v. St. Louis, etc., Railroad Co., 128 Mo. 64, 74; Mize v. Glenn, 38 Mo.App. 106. A party cannot complain of the giving of erroneous instructions where the verdict is found in his favor. Logan v. Field, 192 Mo. 54; Dayton Folding Box Co. v. Danciger, 161 Mo.App. 640, 143 S.W. 855; Edwards v. Mo. Pac. R. Co., 82 Mo.App. 478; 4 Corpus Juris, 1042, footnotes 36 and 37, citing several hundred cases. The verdict of the jury was in favor of the plaintiff and against us on our counterclaim and therefore, under the authorities above, any error in the instruction on the measure of damages on the counterclaim would be harmless, for the reason that the jury didn't give us any damages measured by the instruction. (4) (a) The appellant at this point of his brief complains of the action of the court in giving defendant's Instruction No. 1. If there was any error in the giving of this instruction, which we deny, the same was not called to the attention of the trial court in plaintiff's motion for new trial. The only instructions complained of in plaintiff's motion for new trial were instructions No. 5 and No. 6. (b) The part objected to under this point of appellant's brief is incorporated in the instruction set out at page 74 of appellant's abstract of the record. If there was any error at all in incorporating in this instruction the matters set out at page 7 of appellant's brief, the error was absolutely harmless for the reason that this instruction, which is assailed, related to defendant's counterclaim, and on defendant's counterclaim, the verdict was in favor of the plaintiff and against the defendant, and under the authorities which we have cited supra it will be seen that the appellant cannot assign as error the giving of an instruction on an issue that was found in his favor.
This is an action on account for the contract price and freight on a carload of corn sold by plaintiff to defendant. The defense was that the corn was not of the quality purchased; there was also a counterclaim. On trial in the circuit court the jury found for defendant on plaintiff's petition and for plaintiff on defendant's counterclaim. Plaintiff appealed.
The contract for the sale of this corn is evidenced by plaintiff's Exhibits "A" and "B," which are as follows:
From the evidence it seems the corn was loaded on the car at Caruthersville, Missouri, about June 7, 1922. After some delay, caused by refusal of the Railroad Company to issue a Bill of Lading, the car arrived at Giles Spur, Arkansas about the 13th or 14th of June, 1922. Defendant's evidence tended to show that no inspection of the car of corn was made by any representative of the defendant company until after its arrival at Giles Spur; that on the 13th or 14th of June, the car of corn was inspected by one J. A. McKinney working for the Bimel-Ashcroft Manufacturing Company, the customer to whom defendant had sold the car of corn; that the car of corn was light in weight, chaffy, wormy, weevil eaten and trashy; that it was loose on the cob and unfit for animal use; that the car was further inspected by a representative of the defendant Company on the 16th or 17th of June, who also found the corn dirty, unwholesome and unfit for animal use; that defendant notified plaintiff of the alleged condition of the corn on June 22nd, and again on June 23rd, at which time defendant definitely refused to accept the corn and notified plaintiff it was on the track subject to plaintiff's orders. On or about the 8th day of September, 1922, thereafter, the corn was sold by the Railroad Company for demurrage. Plaintiff's testimony in rebuttal tended to prove that the corn was of the average...
To continue reading
Request your trial