State ex rel. National Ammonia Co. v. Daues

• Decision Date: 03 October 1928
• Docket Number: 28658
• Parties: The State ex rel. National Ammonia Company v. Charles H. Daues et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

10 S.W.2d 931

320 Mo. 1234

The State ex rel. National Ammonia Company v. Charles H. Daues et al., Judges of St. Louis Court of Appeals

No. 28658

Supreme Court of Missouri

October 3, 1928

Motion for Rehearing Overruled November 16, 1928.

Writ quashed.

Merritt U. Hayden and Anderson, Gilbert & Wolfort for relator.

(1) By the last controlling decisions of the Supreme Court, where the issue is one of legal right, collateral matters of motive, intent, etc., are immaterial. Glencoe Land Co. v Comm. Co., 138 Mo. 445; Anderson v. Public Schools, 122 Mo. 67; State ex rel. v. Allen, 308 Mo. 120. It is only where the question in issue is one involving intent, good faith, etc., that such collateral evidence is admissible. Powell v. Railroad, 229 Mo 272; Jones v. Bag Co., 254 S.W. 12; Mathias v O'Neill, 94 Mo. 525. Collateral evidence on issues not in the case is inadmissible. Hicks v. Railroad, 68 Mo. 329; Newcomb v. Railroad, 182 Mo. 715; Bank v. Richmond, 235 Mo. 532; State ex rel. v Blakemore, 275 Mo. 706. (2) Shotnore's statement that he heard no complaint has no probative force. He was not in charge of the boilers, or the records of the firing of the boilers, nor was he the person to whom such complaints were made. His duties related solely to unloading the coal from the cars into the bins. In these circumstances his statement cannot make figs grow on thorns, nor certainty grow on uncertainty. Nelson v. Jones, 245 Mo. 594. Plaintiffs failed to produce the records of the firing of the boilers or the man in charge of them. Bryant v. Lazarous, 235 Mo. 612. The legal effect of evidence is a question of law for the court and not one of fact. Boggs v. Laundry Co., 171 Mo. 291.

Jamison & Thomas for respondents.

(1) On certiorari the Supreme Court will limit its examination to the facts and issues stated in the Court of Appeals' opinion. State ex rel. Greer v. Cox, 274 S.W. 373; State ex rel. Union Biscuit Co. v. Becker, 293 S.W. 783; State ex rel. Ins. Co. v. Allen, 282 S.W. 46; State ex rel. Lehrack v. Trimble, 274 S.W. 416. (2) The trial court may receive evidence of all circumstances attending a transaction and the relations of the parties to aid the jury in judging as to the reasonableness or unreasonableness of their respective claims; and evidence tending to show the market condition, and especially a decline in the market at about the time of defendant rejecting the coal, was admissible on the question of defendants' good faith in claiming that the coal was not according to contract. Jones v. Bag Co., 254 S.W. 12; Seligman v. Rogers, 113 Mo. 642; 35 Cyc. 261; 16 Cyc. 1118, 1119; Penn & Co. v. Smith, 104 Ala. 445; Jones on Evidence, Civil Cases (3 Ed.) p. 182; Holmes v. Goldsmith, 147 U.S. 150; Van Camp Packing Co. v. McGuire, 33 N.Y.S. 210; Kelly v. Sanders, 92 So. 424; Bernhard Stern & Sons v. Chagnon, 99 A. 592.

OPINION

Ragland, J.

In this proceeding relator seeks to have quashed, on the ground of conflict with our decisions, the opinion and judgment of the St. Louis Court of Appeals in the case of Joseph S. Turley et al., respondents, v. The National Ammonia Company, a corporation, appellant, lately pending before it on appeal from the Circuit Court of the City of St. Louis. So much of the opinion as is requisite for a statement of the facts and the rulings complained of follows:

"This is an action for damages for the alleged breach by defendants of its contract to purchase two carloads of slack coal from plaintiffs. The verdict of the jury was for plaintiffs and from the judgment rendered thereon defendant has appealed.

"The petition was in conventional form, reciting the making of the contract and the subsequent breach of same by defendant, together with the resulting damages.

"The answer filed by defendant thereto was a general denial.

"It was admitted that the two carloads of coal were delivered by plaintiffs to defendant on August 17, 1922, and that the same were subsequently rejected by the latter. The agreed price to be paid for the coal was $ 6 a ton at the loading point. It appears that at the time a strike was in progress in the coal fields, and that coal had become very scarce; so much so, in fact, that fuel was being distributed only to essential industries under the supervision of committees of the chambers of commerce throughout the land.

"The real question of fact in dispute was whether the coal in question was usable in defendant's stokers, which were a standard make of the mechanically operated chain-grate type. Upon this issue plaintiffs' evidence disclosed that the coal ordered and shipped was slack coal, containing no dirt or rock; that it was taken from the same pile from which shipments to other industries and institutions were made, and that upon its rejection by defendant the two cars were sold to the Aluminum Ore Company of East St. Louis, Illinois, who operated the same type of stokers as defendant, and by whom the coal was subsequently used without complaint.

"Defendant's evidence, to the contrary, was that the coal was a mixture of siftings from the mine, comprising only forty per cent coal and sixty per cent fire clay and other materials not usable as fuel, and that the mixture was so dense that when placed in the stokers no draft of air could pass through it, without which it could not be burned.

"The first point urged by defendant is that its requested peremptory instruction in the nature of a demurrer to the evidence should have been given, for the alleged reason that there was no evidence that the coal in question was usuable in its stokers, without which proof plaintiffs might not recover. Suffice it to say, however, as our statement of the facts has disclosed, that there was substantial evidence pro and con upon this issue, from which it follows that the case was properly submitted to the jury.

"Defendant next argues that the court erred in admitting evidence of the strike in the coal fields and of the ending thereof. The testimony complained of was to the effect that the strike had been in progress since August 1st; that it came to an end on August 22nd or 23rd, and that, for four or five days prior thereto, it had been generally known to the trade that the strike would be terminated. Whereas the supply of coal had been meager and the price high during the existence of the strike, after its ending the market declined rapidly and most substantially. It appears that plaintiffs were not advised of the rejection of the coal in question until August 21st. The above evidence was admitted by the court solely for the purpose of showing the market conditions, and plaintiffs' contention was that the coal had been rejected by defendant not because it was of inferior quality, but for the reason that coal could thereafter be bought at a much lower figure. Accordingly,...