Summers v. Peoples Elevator Co.
| Citation | 136 S.W.2d 81 |
| Decision Date | 20 November 1939 |
| Docket Number | No. 19536.,19536. |
| Parties | SUMMERS v. PEOPLES ELEVATOR CO. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Bates County; C. A. Calvird, Judge.
"Not to be published in State Reports."
Action by Hardin Summers against the Peoples Elevator Company to recover the market value of wheat alleged to have been sold by the plaintiff to the defendant. From the judgment, the defendant appeals.
Affirmed.
Kenneth W. Tapp, of Kansas City, and Lyman J. Bishop, of Butler, for appellant.
Silvers & Silvers, of Butler, for respondent.
CAMPBELL, Commissioner.
The petition on which the cause was tried is in four counts; the first sought to recover the market value of 133 bushels of wheat alleged to have been sold by plaintiff to defendant on July 16, 1937; the third was to recover for the same wheat upon the theory of conversion; the second was for the market value of 198 bushels and 50 pounds of wheat alleged to have been sold by plaintiff to the defendant on July 21, 1937; the fourth was in conversion of the wheat mentioned in count two.
The answer, following a general denial, alleged defendant received the wheat under an oral contract of storage; that defendant was not informed that plaintiff claimed the wheat was sold to it until August 6, 1938, at which time it offered to pay to plaintiff the "then market price of" the wheat or deliver the wheat to the plaintiff, which offer was refused.
The defendant filed motion in which it was stated that count one was inconsistent with count three and that count two was inconsistent with count four, and prayed the court to cause plaintiff to elect on which of said inconsistent counts he would proceed to trial. A like motion was made orally at the beginning of the trial and renewed at the close of plaintiff's evidence.
Prior to filing answer the defendant made formal tender and deposit with the clerk of the sum of $150 and costs accrued to date of tender.
Considering the legal effect of the tender and the entire record, we think that overruling the motions was not reversible error. Miller v. Schaff, Mo.Sup., 228 S.W. 488.
Trial to a jury resulted in a verdict for the plaintiff on the first and second counts for the sums demanded, and for the defendant on the third and fourth. From the judgment on the verdict the defendant has appealed.
The evidence shows the wheat mentioned in the petition was delivered by plaintiff to the defendant at its elevator in Rich Hill, Missouri, by trucks at the times alleged; that the trucks were operated by Lawrence Burks and Lennie Hill. The latter was plaintiff's witness. He testified he was in the trucking business, hauled one load of the wheat to defendant's elevator; that plaintiff did not tell him to store the wheat; that
Plaintiff testified in effect that he told the drivers of the trucks that he was going to "bin" a part of his wheat and sell a part of it to the defendant; that he never authorized or directed the drivers to store the wheat. It was shown plaintiff, his wife acting for him, demanded payment on the basis of the market price at time of delivery; that defendant at that time, August 6, 1937, offered to pay the market price of the wheat on that day. The offer was refused.
It was further shown that defendant issued to plaintiff a scale ticket for each load of wheat which stated the test weight and number of bushels, but on none of them was the price stated.
Defendant's manager and its witness testified that the absence of a statement on the receipts and its records of the price to be paid indicated the wheat was stored; that "if it had been a sale, the price would have been on the ticket—particularly specified." Later in his testimony he stated that if no instructions either to sell or store were given, the price would not be stated on the defendant's records.
The defendant's evidence further shows that it received the wheat from plaintiff, mingled it with other wheat and shipped the same to market; that wheat sent to defendant's elevator was either stored or purchased by it, and in event of purchase the price was the market price at the time of delivery; that at all times here involved defendant had ability to return to plaintiff wheat of the same grade as the wheat which it received from him.
There was no evidence the wheat was stored; it was received, mingled with other wheat and promptly shipped to market by the defendant. The defendant argues that section 14396, R.S.1929, Mo.St. Ann. § 14396, p. 8192, authorized it to mingle the wheat received from plaintiff with other wheat of like grade and to sell and ship from the common mass. Said section provides a warehouseman may mingle fungible goods with other goods of the same kind and grade, and that the various depositors of the mingled goods shall be entitled to such portion thereof as the amount deposited by him bears to the mass, but it does not allow a warehouseman to sell any of the mingled goods.
Moreover, defendant, so far as this record shows, was not a warehouseman; it had not obtained a license as required by section 14353, Mo.St.Ann. § 14353, p. 8176, nor did it issue warehouse receipts as provided in section 14376, Mo. St.Ann. § 14376, p. 8187, and it therefore is not in position to invoke the provision of section 14396, supra. We conclude the evidence of the defendant shows the wheat, as a matter of law, was not stored by it.
Was the grain sold?
In determining that question all the facts and circumstances in evidence must be considered for the reason the conduct of the parties, their course of dealing, are important in determining their understanding. The defendant was engaged in buying and selling wheat and had been thus engaged for several years. The wheat in question was delivered into the defendant's possession, and then and there plaintiff, as shown by the evidence of both parties, lost control or right of control thereof.
The conclusion is...
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