National Warehouse & Storage Co. v. Toomey

• Decision Date: 03 February 1914
• Citation: 163 S.W. 558,181 Mo. App. 64
• Court: Missouri Court of Appeals
• Parties: NATIONAL WAREHOUSE & STORAGE CO. v. TOOMEY et al.

163 S.W. 558

181 Mo. App. 64

NATIONAL WAREHOUSE & STORAGE CO. v. TOOMEY et al.

St. Louis Court of Appeals. Missouri.

February 3, 1914.

Rehearing Denied February 17, 1914.

1. APPEAL AND ERROR (§ 1001)—REVIEW — VERDICT—CONFLICTING EVIDENCE.

Where there is substantial evidence to support a verdict, the Court of Appeals has no power to interfere therewith, though the evidence was conflicting, provided the jury was properly instructed.

2. TRIAL (§ 203)—INSTRUCTIONS—THEORY OF CASE.

Parties are entitled to instructions presenting the various theories of the case, provided they are supported by the evidence and follow the law.

3. EVIDENCE (§ 207)—ADMISSIONS—INSTRUCTION AT PRIOR TRIAL.

In an action for breach of a contract for the sale of hay, an instruction for defendant, on a prior trial, that plaintiff was entitled to recover nominal damages only, was not admissible as an admission that plaintiff was entitled to recover.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by the National Warehouse & Storage Company against P. Toomey and others. Judgment for defendants, and plaintiff appeals. Affirmed.

See, also, 160 Mo. App. 622, 140 S. W. 1196.

Henry H. Oberschelp, of St. Louis, for appellant. Judson & Green, of St. Louis, for respondents.

REYNOLDS, P. J.

This action was instituted before a justice of the peace, by attachment for breach of a contract evidenced by the following memorandum:

                         "Independence, Iowa, ...... 190
                "M
                   "In account with Toomey & Ahearn
                                             "10/27/06
                

"Sold to National W. H. & St. Co. 12 cars No. 1 Tim. hay at $12.00 ton track Independence.

                                        Toomey & Ahearn."
                

Along with this memorandum a statement was filed in which it is set out that on or about October 27th, 1906, defendants entered into a contract with plaintiff by which they agreed to sell and did sell to plaintiff twelve cars No. 1 timothy hay at $12 per ton. Charging that no part thereof had been delivered to plaintiff, although demand had been made therefor, plaintiff demands judgment in the sum of $404 and interest and costs. Plaintiff recovered before the justice and the cause being appealed to the circuit court, on a trial there a verdict, under an instruction by the court, was returned in favor of plaintiff for one dollar as nominal damages. Plaintiff appealing to our court from that judgment, we reversed it for exclusion of certain evidence tending to show that there was no market at Independence, Iowa, at the time, and of evidence offered tending to show the value of hay in the St. Louis market. For error in excluding this evidence our court reversed the judgment of the circuit court. A motion for rehearing, however, having been filed and sustained, the judgment of reversal being set aside, pending the reargument the cause was transferred to the Springfield Court of Appeals. There the judgment of the circuit court was reversed and the cause remanded for like reason as given by our court. The opinion of the Springfield Court of Appeals, under like title, will be found in 144 Mo. App. 516, 129 S. W. 423. The cases coming back to us under the decisions of the Supreme Court, in State ex rel. Dunham v. Nixon et al., 232 Mo. 98, 133 S. W. 336, and kindred cases, we adopted the opinion of the Springfield Court of Appeals and reversed and remanded the cause. See 160 Mo. App. 622, 140 S. W. 1196. The cause being retried in the circuit court, resulted in a verdict for defendant; judgment following, plaintiff has appealed.

Appellant assigns four grounds for reverssal. First, that the trial court erred in refusing to allow plaintiff to introduce in evidence the peremptory instruction for nominal damages, given by the court at the request of defendants at the former trial. Second, that the trial court erred in giving two certain instructions, it being assigned that in one of them the court had unwarrantedly assumed that there was evidence that the contract might have been entered into and thereafter altered by inserting the term "No. 1," or that all the words above the signature were written before defendant Toomey affixed the signature of his firm, except the words "No. 1," and that the contract was thereafter altered by the insertion of these words, and that in the other instruction the court had unwarrantedly assumed that there was evidence that only some of the words in the contract may have been written before Toomey, one of the defendants, affixed the firm's signature and other words thereafter. The third assignment is to alleged error of the trial court in giving on behalf of defendants three instructions, all as alleged, in form most favorable to defendants and highly prejudicial to plaintiff; and fourth, that the verdict was contrary to the evidence and the great weight thereof.

The case was tried, so far as the admission of testimony as to the market value of the hay, in conformity with the rule laid down by the Springfield Court of Appeals and approved by our court in the decisions above referred to.

At this last trial, however, there was evidence introduced challenging the execution of the memorandum in the form in which it is set out, defendants having denied its execution under oath. There was evidence on the part of plaintiff...