Neil v. Cunningham Store Co.

• Decision Date: 07 July 1910
• Parties: NEIL et al. v. CUNNINGHAM STORE CO.
• Court: Missouri Court of Appeals

130 S.W. 503

149 Mo. App. 53

NEIL et al. v. CUNNINGHAM STORE CO.

Springfield Court of Appeals. Missouri.

July 7, 1910.

Motion to Modify Opinion Denied July 19, 1910.

1. APPEAL AND ERROR (§ 1012)—REVIEW— FINDINGS OF COURT.

Where a case is tried before the court without a jury, and the evidence does not so preponderate against the verdict as to show mistake, prejudice, or passion, the appellate court will not interfere.

2. APPEAL AND ERROR (§ 1003) — REVIEW — VERDICTS—CONCLUSIVENESS.

The appellate court will not ordinarily in law cases attempt to determine where the preponderance of evidence lies, that duty devolving on the jury trying the case, subject to the supervising control of the trial court, and it is only when the preponderance of evidence is so overwhelming and manifestly against the verdict as necessarily to imply prejudice, passion, or corruption that the appellate court will interfere.

3. APPEAL AND ERROR (§ 1008)—WEIGHT OF EVIDENCE — REVIEW — DOCUMENTARY EVIDENCE.

Ordinarily the trial court is in a much better position to judge of the weight to be given to a witness' testimony than is the appellate court; but, where the testimony is documentary or in the form of a deposition, this advantage of the trial court does not exist.

4. SALES (§ 416)—EVIDENCE—ADMISSIBILITY.

In an action against the seller of corn, to be loaded and shipped as ordered by the buyers, for damages for shipping an inferior grade of corn, where the witnesses all agreed that the cars were in good condition, and that corn put in such cars dry and in good condition would not be wet, soft, and mildewed when it arrived at destination, it was error to reject testimony regarding the condition of the corn at destination.

5. SALES (§ 417)—INCONSISTENT TESTIMONY— DISREGARD OF.

In an action against the seller of corn, to be loaded and shipped as ordered by the buyers, for damages for shipping an inferior grade of corn, though, considering only the oral testimony as to the condition of the corn when loaded, the preponderance of the evidence was with defendant, yet, where the corn was in bad condition when it arrived at destination, and could not have been in such condition had it been all right when loaded, the testimony as to the condition of the corn when it was loaded is so inconsistent with the physical facts that it should be disregarded.

6. SALES (§ 417)—EVIDENCE—SUFFICIENCY.

In an action against the seller of corn, to be loaded and shipped as ordered by the buyer, for damages for shipping an inferior grade, evidence held insufficient to support a verdict for defendants.

7. SALES (§ 418) — FAILURE TO DELIVER — MEASURE OF DAMAGES.

In actions for damages for failure of the seller to deliver goods which he had contracted to furnish, the measure of damages is the difference between the price agreed upon and the market value of the property at the time and place of delivery.

8. SALES (§ 161)—BILL OF LADING—CONTROL OF GOODS.

Where, at the time cars were loaded with corn by the seller, he knew that they were to be shipped to some distant point, and the bill of lading with draft attached was sent to the buyers, in order for them to get the bill of lading, it was necessary to pay the draft, and, therefore the seller really controlled the property.

9. SALES (§ 274)—IMPLIED WARRANTY.

Where corn was sold to be shipped to another point, the seller impliedly warranted that it was sound and merchantable, and he will be liable for damages to the buyers on account of the corn being in a damaged condition.

10. SALES (§ 418)—DELIVERY OF INFERIOR GRADE—MEASURE OF DAMAGES.

Where the seller of corn shipped it for the buyers to a distant point, he must have known that the buyers were shipping it to be sold and were expecting to realize some profit in the transaction, and that, if the corn was not merchantable upon its arrival, the buyers would be unable to sell at a fair market price, and that just the amount that they had to accept for the corn less than the market value on account of its condition would be their damages, and they were entitled to their bargain.

11. SALES (§ 418)—BREACH OF CONTRACT BY SELLER—MEASURE OF DAMAGES.

Where corn was sold to be loaded and shipped by the seller as ordered by the buyer, and an inferior grade of corn was shipped, and in order to sell the corn at the price for which it was sold the buyers were put to some expense, they were entitled to recover such expenses.

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

Action by J. H. Neil and another doing business as the Interstate Grain Company against the Cunningham Store Company. Judgment for plaintiffs for an insufficient amount, and they appeal. Reversed and remanded.

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

GRAY, J.

This case originated in the circuit court of Pemiscot county in March, 1908. Plaintiffs allege that in November, 1907, they purchased of the defendant two car loads of corn which was thereafter to be loaded by the defendant and shipped as ordered by plaintiffs; that the corn so purchased was to be good, sound, merchantable corn, defendant knowing at the time that the corn was to be placed on the market and sold by plaintiffs; that the plaintiffs did not personally inspect the corn, but relied on the defendant to load the cars with the quality of corn purchased; that the car loads of corn were shipped to Eufaula, Ala.; that the plaintiffs paid therefor 45 cents per bushel, amounting to $644.85, supposing and believing that the amount so paid was the correct amount due for said corn and that the corn was good and merchantable; that the corn so loaded was not good, sound, merchantable corn; neither was there the amount of corn in the cars that defendant claimed was loaded therein, but the corn was inferior, chaffy, and green or wet, wholly unfit for market, and in such damaged condition, that when it reached Eufaula it was heated, unfit for market, and had to be rehandled to prevent a total loss; that plaintiffs paid for 384 bushels more of corn than were put in the cars; that they had the corn sold in Eufaula at 75 cents per bushel, but on account of the damaged and inferior quality of said corn plaintiffs could only realize 40 cents per bushel; that by reason of the fact plaintiffs lost the difference between 40 cents per bushel and 75 cents per bushel, also the difference in weights, and were to the expense of $75 in rehandling said corn and expenses in looking after the same, and prayed for judgment in the sum of $584.37. The answer admitted the sale of the corn, and that there was a shortage in one car in the number of bushels paid for, and that on account thereof the defendant received $40 more for the corn than it was entitled, and tendered the same with costs. The answer further alleged that the corn delivered to plaintiffs was in good condition and undamaged, and was sound and merchantable corn. There was a trial by court and judgment in favor of the plaintiffs in the sum of $126.90, from which the plaintiffs appealed.

From the declarations of law given and refused by the court, it is shown that plaintiffs were allowed a judgment for the amount of corn which the court found they paid for in excess of the number of bushels delivered, and refused to allow plaintiffs' claim for damages on account of the inferior quality of the corn, or their expenses in looking after the same after its inferior condition...