Schindler v. Producers' Grain Co.

• Decision Date: 30 January 1922
• Docket Number: No. 14198.,14198.
• Citation: 237 S.W. 124
• Parties: SCHINDLER et al. v. PRODUCERS' GRAIN CO.
• Court: Missouri Court of Appeals

237 S.W. 124

SCHINDLER et al. v. PRODUCERS' GRAIN CO.

No. 14198.

Kansas City Court of Appeals. Missouri.

January 30, 1922.

Appeal from Circuit Court, Boone County; D. H. Harris, Judge.

"Not to be officially published."

Action by Amos Schindler and another against the Producers' Grain Company. From judgment for plaintiffs, defendant appeals. Affirmed on condition of remittitur.

Harris & Price, of Columbia, and Arthur Bruton, of Centralia, for appellant.

Don C. Carter, of Sturgeon, for respondents.

ARNOLD, J.

This is a suit to recover the remainder of the purchase price of 3,000 bushels of corn alleged to have been sold by plaintiffs to defendant at an agreed price of $1.60 per bushel.

Plaintiffs (father and son) are farmers in Audrain county 10 miles northeast of Centralia, Mo. Defendant is a corporation on a co-operative plan by a group of farmers, under the provisions of an act of the General Assembly of Missouri 1919 for the purpose of marketing farm products. The stock of the corporation is owned exclusively by farmers in that vicinity. The corporation has its headquarters and principal place of business at Centralia. It was organized in August, 1919, and one of its functions was to buy and sell grain for profit, and in 1920 it engaged largely in buying and selling grain.

On August 10, 1920, Amos Schindler, one of the plaintiffs, went to the office of defendant at Centralia, seeking to sell 3,000 bushels of corn belonging to plaintiffs. A conversation ensued between Amos Schindler and II. L. Libby, one of the directors of defendant, during which, as claimed by defendant, Schindler was told of a resolution of the board of directors of the corporation forbidding the further purchase of grain. Schindler then asked Mr. Libby to have the corn examined, and accordingly on the follow day Mr. Libby, in company with Mr. Smith, president, and Mr. Boyle, vice president of the corporation, went to plaintiffs' farm and examined the corn.

As to the exact purport of the negotiations between the parties on this occasion relative to the sale or disposition of the corn there is some conflict in the testimony of the parties. Plaintiffs declare that at that time the corn was sold to defendant for $1.60 per bushel, to be paid for as each 100 bushels thereof were sold, while defendant asserts the contract was that the corn was delivered to defendant to be sold on a commission of 15 per cent. of the gross amount for which the corn was sold. As the corn was being delivered, payments in cash were made to plaintiffs, amounting in total to $1,210. There was also a credit due defendant for hauling of $114.74.

The petition charges that the corn was delivered to defendant and sold by it, that defendant has failed and refuses to pay for same, after deducting proper credits, and prays judgment for $3,593, with interest from September 1, 1920. The answer is a general denial.

The cause was tried before the court and to a jury, resulting in a verdict and judgment for plaintiffs in the sum of $3,642. Defendant's motion for a new trial was overruled and defendant appeals. Two assignments of error are urged:

(1) The court erred in overruling defendant's motion for a new trial.

(2) The court erred in excluding as evidence the resolution of defendant's board of directors offered in evidence.

The appeal is based solely on these two questions. In support of the first assignment of error defendant urges there was not sufficient evidence produced by plaintiffs to support the verdict.

As stated above, the evidence of the parties is conflicting as to the exact details of the alleged contract for the sale of the corn. It was therefore a question for the jury to determine, and the jury's finding will not be disturbed by this court. It is said in Peters v. Railway Co., 224 S. W. loc. cit. 28.

"The evidence on both sides raised a question for the jury, and, the jury having determined the same, the matter cannot be reviewed by us."

The record discloses the fact that defendant failed to demur to the evidence of plaintiff, or to ask for a peremptory instruction in its favor, either at the close of plaintiff's case or at the close of all the evidence. This amounts to an admission on the part of defendant that there was sufficient evidence to take the case to the jury, and is binding on appeal. Felty v. Dunlap et al., 203 S. W. 651; Lumber Co. v. Niedermeyer, 187 Mo. App. loc. cit. 186, 173 S. W. 57; Kenefick v. Fire Ins. Co., 205 Mo. loc. cit. 311, 103 S. W. 958. In Jennings v. Cooper, 230 S. W. 325, this court held:

"The case was submitted without a demurrer to the evidence or any instruction on the part of defendant asking for a directed verdict in her favor. In thus joining in the submission of the case to the jury without a demurrer, the defendant, in effect, concedes that plaintiff has a case sufficient to go to the jury. Boone Co. Lumber Co. v. Niedermeyer, 187 Mo. App. 180, 186, 173 S. W. 57."

See, also, Smith v. Greenstone, 208 S. W. 629, where the same principle is upheld.

In Kenefick v. Insurance Co., supra, the Supreme Court, discussing the case of Hartford Ins. Co. v. Unsell, 144 U. S. 451, ...