St. Louis Union Packing Co. v. Mertens

• Decision Date: 24 October 1910
• Citation: 150 Mo. App. 583,131 S.W. 354
• Parties: ST. LOUIS UNION PACKING CO. v. MERTENS
• Court: Missouri Court of Appeals

131 S.W. 354

150 Mo. App. 583

ST. LOUIS UNION PACKING CO. v. MERTENS

St. Louis Court of Appeals. Missouri.

October 24, 1910.

1. SALES (§ 272) — IMPLIED WARRANTY — MERCHANTABLENESS.

Where plaintiff agrees to sell, and defendant to buy, all the surplus ice to be manufactured by plaintiff, there is an implied warranty that it will be merchantable; so that the fact that it was not merchantable is a good defense to an action for refusal to take and pay for it.

2. TRIAL (§ 253) — INSTRUCTIONS — IGNORING DEFENSES.

Plaintiff's requested instruction that, if certain facts be found, it was entitled to a verdict, is properly refused as not covering the whole case; it ignoring a good defense, with evidence to sustain it, and no other instruction attempting to supply the deficiency being asked by plaintiff.

3. APPEAL AND ERROR (§ 1170) — HARMLESS ERROR.

Mere clerical errors in an instruction in using "defendant" and "defendant's" instead of "plaintiff" and "plaintiff's," where the jury could not fail to understand what was meant, in view of the evidence, is not ground for reversal.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by the St. Louis Union Packing Company against Theodore W. Mertens. Judgment for defendant. Plaintiff appeals. Affirmed.

E. C. Dodge, for appellant. P. A. Griswold, for respondent.

CAULFIELD, J.

The plaintiff agreed to sell, and the defendant to buy and take daily, at $3 per ton, all of the ice manufactured at plaintiff's plant during the six months ending October 31, 1906, and not needed by plaintiff in its packing business, not exceeding, however, 40 tons per day during May and October. Defendant was a dealer in ice, wholesaling and retailing ice for ordinary uses. The contract was fully complied with up to October; but during that month defendant refused to take, in all, 137 19/20 tons, which, at the contract price, was worth $413.85, and for this amount plaintiff sued. After instituting the suit and upon the trial, the plaintiff conceded that it had used one-third of the said refused ice in icing cars, and that the defendant should have credit for $137.95 therefor, thus reducing plaintiff's actual claim to $275.90. All of said refused ice not so used or disposed of by the plaintiff was lost by melting and disintegration. The suit having originated in a justice's court, there was no pleading filed upon the part of the defendant; but the defense adduced at the trial in the circuit court and supported by ample evidence was that the ice refused was not of a merchantable quality, all of it being oily and red and having salt in it, so that it was not fit for the ordinary uses to which ice is put. There was also evidence tending to prove that plaintiff used in icing cars more than one-third of the ice refused, and should have still further reduced its claim on that account. The verdict and judgment were for defendant, and plaintiff appeals.

1. It is first contended that the court erred in refusing to give the following instruction offered by plaintiff: "The court instructs the jury that if they believe and find from the evidence that there was a special contract read in evidence, between plaintiff and defendant, by which the plaintiff agreed to sell, and defendant agreed to take, all the surplus ice at the plant of plaintiff during the months from May to October, inclusive, and not over 40 tons per day during May and October, 1906, and to pay for same at the rate of $3 per ton on the 10th of the month following delivery, and if the jury believe and find from the evidence that the defendant was offered 92 tons of said ice during October, 1906, and plaintiff complied with all the terms of said agreement, and defendant refused to pay for said ice according to the terms of said agreement, the plaintiff's is entitled to a verdict in the sum of $275.90, with interest from May 25, 1907, to date of filing suit." The fault of this instruction is that, while it directs a verdict, it does not cover the whole case. There was an implied warranty...