Pugsley v. Ozark Cooperage & Lumber Co.

• Decision Date: 05 December 1911
• Citation: 162 Mo. App. 360,141 S.W. 923
• Court: Missouri Court of Appeals
• Parties: PUGSLEY v. OZARK COOPERAGE & LUMBER CO.

141 S.W. 923

162 Mo. App. 360

PUGSLEY v. OZARK COOPERAGE & LUMBER CO.

St. Louis Court of Appeals. Missouri.

December 5, 1911.

1. EXCEPTIONS, BILL OF (§ 7)—ABSTRACT OF BILL OF EXCEPTIONS—SUFFICIENCY.

Where the abstract of a bill of exceptions, as amended, contained a call for the clerk to insert the motion for new trial in the proper place, and referred to the abstract of the record proper, where the motion for new trial was set out in full, the motion for new trial and exception to the overruling thereof were duly preserved for review on appeal.

2. APPEAL AND ERROR (§ 525)—ABSTRACT OF BILL OF EXCEPTIONS—SUFFICIENCY.

Where instructions were inserted in the abstract of the record, but were not set out in the bill of exceptions, though reference was there made to the abstract of the record, and there were recitals that defendant excepted to the giving of such instructions, the abstract was not sufficient to present the exceptions to these instructions for review on appeal; for instructions are not part of the record proper, and can become such only by being incorporated into the bill of exceptions.

3. APPEAL AND ERROR (§ 511)—BILL OF EXCEPTIONS—REQUISITES.

A bill of exceptions, signed by the judge presiding in the court when it was filed, is sufficient; and therefore an abstract of the bill of exceptions, which shows those facts, is sufficient.

4. SALES (§ 61)—CONTRACTS—CONSTRUCTION.

Where a contract of sale provided that defendant agreed to sell and plaintiff to purchase 400,000 hoops, to be delivered at plaintiff's place of business, and that defendant should, before acceptance or payment, have the right to inspect the hoops and reject such as failed to come up to the requirements, and it did not appear that plaintiff had that number of hoops then on hand, the contract was executory and not executed; the title to the hoops not passing until acceptance.

5. SALES (§ 382) — ACTIONS FOR BREACH — DAMAGES.

Before the seller of hoops under an executory contract of sale can recover for the buyer's refusal to accept the same, he must prove the market value of the goods at the time and place of delivery; and hence the exclusion of evidence of market value offered by the buyer to show that the seller had not been damaged was error.

6. CONTRACTS (§ 346) — MODIFICATION — PLEADING—NECESSITY.

Where a written contract was unambiguous, evidence that the parties had interpreted the contract, or had acted upon it, otherwise than as written was not admissible, unless set up by proper pleadings.

Appeal from St. Louis Circuit Court; Geo. C. Hitchcock, Judge.

Action by J. B. Pugsley, doing business as the Knobel Hoop Company, against the Ozark Cooperage & Lumber Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

George B. Webster, for appellant. J. M. Lashly, Felix O. Poston, and Glendy B. Arnold, for respondent.

REYNOLDS, P. J.

This is an action on a written contract for the sale of 400,000 barrel hoops. The petition is in two counts, the first claiming $511.41, said to be the balance due on 330,000 hoops, the second claiming $507.50, said to be due on account of failure and refusal to accept and pay for 70,000 hoops. The contract given in evidence, in substance, sets out that plaintiff, in consideration of $1, to it in hand paid by defendant, "agrees to sell" to defendant and the latter "agrees to purchase" from plaintiff, 400,000 six-foot hoops at $7.25 per thousand, and, to quote from the contract, "it being understood that all payments are to be made to the bank of Knobel. All f. o. b. cars Knobel, Ark. Shipment to commence at once and continue thirty days. All of the above stock to be first-class of the grade mentioned, and to conform to standard specifications as understood by the trade. The count of all shipments to be guaranteed by party of the second part; party of the first part to credit up to party of the second part all stock found to be in excess of the amount called for by their invoice, and to deduct all shortages, both at contract prices. Terms: Thirty days net, or 1 per cent. discount for cash within ten days from date of invoice."

The answer, after a general denial, pleaded payment and accord and satisfaction, as well as failure to deliver 70,000 of the hoops of the kind contracted for.

At a trial before the court and jury there was a verdict for defendant on the first count, under the direction of the court, and one for plaintiff on the second count in the sum of $507.50, judgment following accordingly. From the judgment against it, defendant appealed to this court.

We transferred the case to the Springfield Court of Appeals under the provisions of an act of the General Assembly of this state (Session Acts 1909, p. 396, now section 3939, R. S. 1909). There the judgment of the circuit court was affirmed on the ground that the abstract furnished by appellant failed to show that the motion for a new trial had been set out in the bill of exceptions, or there called for. The opinion of the Springfield Court of Appeals is reported under this same title. 154 Mo. App. 386, 133 S. W. 859. When the case was transferred back to this court by the Springfield Court of Appeals in consequence of the decision of the Supreme Court in State ex rel. St. Louis Dressed Beef & Provision Co. v. Nixon et al., 232 Mo. 496, 134 S. W. 538, appellant, by leave of court, amended by interlining in the proper place in the abstract of the bill of exceptions, the words, "Clerk will here insert same." The abstract as now amended as to this reads thus: "And afterwards, to wit, upon the 18th day of November, A. D. 1909, at the same term of court, and within four days after the rendition of said verdict, defendant filed its motion for a new trial; which said motion is in words and figures as follows, to wit: (Clerk will here insert same.) (See ante, pp. 17, 18.) And thereafter, to wit, upon the 20th day of December, A. D. 1909, at the December, 1909, term, to which said motion had been continued, the court did enter of record an order overruling defendant's motion for a new trial. To which action of the court in overruling and denying said motion for a new trial, defendant at the time duly objected and excepted, and still continues to except." The words inserted are those first above italicised.

In the abstract of the bill of exceptions this also appears: "Thereupon the court gave and read to the jury the following instructions upon the part of the plaintiff: (See ante, pp. 12, 13.) To which action of the court in giving said instructions, and each of them, defendant duly objected and excepted, and still continues to except." Like entries appear as to all the other instructions given at the instance of plaintiff as well as to those given by the court of its own motion. Those given on motion of defendant, as well as those asked by defendant and refused, are referred to in the same way; that is to say, the instructions are not set out at all in the abstract of the bill of exceptions but are merely referred to as being found at such and such preceding pages of the abstract. Nor is there any recital that in the bill of exceptions there is any call for the clerk to insert them, as is done by amendment with respect to the motion for a new trial. Referring to the pages in the printed abstract which are cited, we find, under the heading, "Abstract of the Record," matter designated as instructions and purporting to have been asked, given or refused, as the case may be. The abstract of the record proper concludes with the recital that on a day named and within the time allowed therefor, the defendant presented its bill of exceptions which was thereupon signed, sealed and allowed and filed, and that "the said bill of exceptions is in words and figures as follows, to wit." Here follows the heading, "Bill of Exceptions," and the abstract of that. At the end of...