State v. Daues

• Citation: 10 S.W.2d 931
• Decision Date: 03 October 1928
• Docket Number: No. 28658.,28658.
• Parties: STATE ex rel. NATIONAL AMMONIA CO. v. DAUES et al., Judges.
• Court: United States State Supreme Court of Missouri

10 S.W.2d 931

STATE ex rel. NATIONAL AMMONIA CO. v. DAUES et al., Judges.

No. 28658.

Supreme Court of Missouri, Division No. 1.

October 3, 1928.

Motion for Rehearing Overruled November 16, 1928.

Certiorari by the State of Missouri on the relation of the National Ammonia Company, directed to Honorable Charles H. Daues and others, as Judges of the St. Louis Court of Appeals, to have quashed, on the ground of its conflict with Supreme Court decisions, opinion and judgment of the St. Louis Court of Appeals in 299 S. W. 53. Writ quashed.

Merritt U. Hayden, of Detroit, Mich., and Anderson, Gilbert & Wolfort, of St. Louis, for relator.

Jamison & Thomas, of St. Louis, for respondents.

RAGLAND, J.

Certiorari. 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. National Ammonia Company, a Corporation, Appellant, 299 S. W. 53, 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 defendant 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 $6.00 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, Ill., 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 40 per cent. coal and 60 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 usable 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 plain...