Neil v. Cunningham Store Co.

• Decision Date: 07 November 1911
• Citation: 160 Mo. App. 513,140 S.W. 947
• Parties: NEIL et al. v. CUNNINGHAM STORE CO.
• Court: Missouri Court of Appeals

140 S.W. 947

160 Mo. A. 513

NEIL et al. v. CUNNINGHAM STORE CO.

St. Louis Court of Appeals. Missouri.

November 7, 1911.

Rehearing Denied November 25, 1911.

1. APPEAL AND ERROR (§ 1011) — REVIEW — FINDINGS ON CONFLICTING EVIDENCE.

Findings of fact by the trial judge on an irreconcilable conflict in the testimony, having substantial evidence to support them, cannot be disturbed on appeal, whether the testimony be oral or by way of depositions, provided that, in arriving at the findings, it is apparent that error of law has not been committed or the law misapplied.

2. SALES (§ 418) — DELIVERY OF INFERIOR QUALITY—MEASURE OF DAMAGES.

The measure of damages, because of corn bought being in a damaged condition is not the difference between the price at which the buyer had contracted for its resale, and the best price he could obtain for it in its damaged condition, but the difference between its market value had it been in good condition, and its market value in its damaged condition.

3. SALES (§ 418) — DELIVERY OF INFERIOR QUALITY — DAMAGES — PLACE OF MARKET VALUE.

Where one sells corn to be loaded by him on cars, without any understanding as to where it is to be shipped, the market value at the point to which the buyer ships is not a proper element in estimating the damages from the poor condition of the corn.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by John H. Neil and others against the Cunningham Store Company. Judgment for defendant. Plaintiffs appeal. Affirmed.

Shepard & Shepard, for appellants. Faris & Oliver, for respondent.

REYNOLDS, P. J.

Plaintiffs brought their action against defendant, claiming damages in the sum of $584.27, arising out of a breach of contract in the sale by defendant to plaintiffs of two car loads of corn. On a trial of the case before the court, a jury having been waived, there was a finding and judgment in favor of plaintiffs for $126.90. From this judgment, plaintiffs in due time appealed to this court. The cause was transferred by us to the Springfield Court of Appeals under the provisions of section 3939, R. S. 1909, and the judgment of the circuit court reversed. Thereafter the cause was transferred back to us in consequence of the holding of the Supreme Court, that the act of the General Assembly (Acts 1909, p. 396, sec. 3939, supra), was unconstitutional and that all judgments rendered by the Springfield Court of Appeals in causes so transferred were void. State ex rel. Dunham v. Nixon, 232 Mo. 98, 133 S. W. 336; State ex rel. St. Louis Dressed Beef & Provision Co. v. Nixon, 232 Mo. 496, 134 S. W. 538; State ex rel. O'Malley v. Nixon, 233 Mo. 345, 138 S. W. 342. A statement of the pleadings and facts in this case, as well as the opinion of the Springfield Court of Appeals will be found reported under this same title, in 149 Mo. App. 53, 130 S. W. 503. As the pleadings are there fully stated, we will not repeat them here. In the view we take of the case, we will make our own statement of the testimony, taking that as abstracted by counsel for appellants.

It appears that plaintiffs are a co-partnership, trading under the name Interstate Grain Company, with their chief office at Nashville, Tennessee. They were engaged in buying corn in Missouri, through an agent, and in the case before us, bought of defendant two loads of corn in the shuck, at 45 cents per bushel, f. o. b. cars at or near Caruthersville, in this state. The cars were loaded about November 16, 1907. Defendant thereupon made two drafts on plaintiffs, one for $363.60, for 808 bushels of corn, and one for $281.25 for 625 bushels. The drafts were, attached to the bills of lading, sent to plaintiffs and paid by them—when paid is not clear, but they appear to have been sight drafts, and to have been paid when presented and before the cars reached Eufaula. One car reached Eufaula, Alabama, November 29th, the other December 3d.

In a letter from plaintiffs to defendant, notifying the latter of the bad condition of the corn, plaintiffs write that they are "advised by the party to whom we shipped the ear corn at Eufaula, that one car," etc. So that it seems that while sold to plaintiffs f. o. b. Caruthersville and billed to them and bills of lading made out to plaintiffs and drafts drawn on plaintiffs, the cars had been ordered sent by plaintiffs direct to Eufaula, to the R. M. Jennings Brokerage Company. Unfortunately neither the bills of lading nor drafts are in the abstract but they appear to have been dated November 16, 1907. When the car loads of corn arrived at Eufaula and were opened, according to the depositions of five witnesses, deposing on behalf of plaintiffs, and the oral testimony of one of the plaintiffs, testifying in chief, the corn was found to be wet and heated and mouldy and sprouted. These witnesses gave it as their opinion that it must have been frozen or frostbitten when it was loaded, the shucks and ears being hot and black with mildew, the corn mildewed and partially sprouted. The Jennings Brokerage Company, with the co-operation of one of the plaintiffs, had the corn removed from the cars and placed in the warehouse, where it was so handled that it was sold at Eufaula by plaintiffs or on their account by their brokers, at 40 cents a bushel. There was testimony tending to show that plaintiffs or their consignees had sold the corn to arrive at Eufaula at 75 cents a bushel and that that was the fair market value at that place and time of sound corn in the shuck. Plaintiffs introduced testimony tending to show the amount of expense incurred by them in connection with caring for the corn at Eufaula. This, over the objection and exception of defendant. All the witnesses for both parties testified that the cars in which this corn was loaded, one of them a box car, the other a cattle car, were in good condition. The witnesses on part of plaintiffs further testified that in their opinion the corn could not have been damaged in transit. On the part of defendant, eight witnesses testified, in effect, that they had helped load this corn or had seen it loaded; some of them had planted and gathered it; one or more of them who had sold a part of it to defendant, testified that at the time when they took out this corn, they had taken part of the same lot, stored it in cribs and still had it, and that it was sound and dry. All gave testimony tending to prove that when these two cars were loaded the corn was sound, well cured, in good condition, with no signs of frostbite, mildew or dampness. In rebuttal...