The Atkin Brothers Co. v. Southern Grain Co.
| Decision Date | 06 April 1908 |
| Citation | 109 S.W. 88,130 Mo.App. 542 |
| Parties | THE ATKIN BROTHERS COMPANY, Respondent, v. SOUTHERN GRAIN COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Hermann Brumback, Judge.
AFFIRMED.
Ringolsky & White for appellant.
(1) Technical rules applicable to pleadings in courts of general jurisdiction are dispensed with in causes originating before a justice of the peace, yet it is essential that the statement of the cause of action should be sufficiently specific to advise defendant of the nature of the claim so that he can make preparations upon an intelligent basis and meet the demand and cause of action suggested by the complaint, and it is error to give instructions authorizing a recovery on grounds different from those laid in the complaint. McClure v. Feldman, 184 Mo. 710. (2) The instructions given for plaintiff are framed without regard to the allegations in the petition and the court cannot by an instruction change the issues made by the pleadings. A plaintiff can only recover on the case he states in his petition. Caffery v. Coal & Mining Co., 95 Mo.App 180. (3) Where there is no evidence by which the elements of damages may be ascertained it is error to tell the jury that they may give plaintiff such damages as they may find he has suffered. Morrison v. Yancey, 23 Mo.App. 670; Cravens v. Hunter, 87 Mo.App. 495; Stephen v Metzger, 95 Mo.App. 627; Haysler v. Owen, 61 Mo. 270; Matney v. Gregg, 19 Mo.App. 107; Rhodes v Land Co., 105 Mo.App. 314.
Botsford Deatherage & Young, and Goodwin Creason for respondent.
(1) There was an implied warranty that the corn was merchantable and reasonably fit for the uses to which it was ordinarily put. Benjamin on Sales (3 Amer. Ed. by Bennett), sec. 345; 2 Mechem on Sales, sec. 1340; Brewing Co. v. McEnroe, 80 Mo.App. 429; Babock v. Trice, 18 Ill. 420; Brown v. Emerson, 66 Mo.App. 63; Grain Co. v. Beubaker, 89 Mo.App. 1; Haner v. Churchill, 29 Mo.App. 676; Atkin Bros. Co. v. Grain Co., 119 Mo.App. 119. (2) It makes no difference if plaintiff did accept the corn before inspection of the same. The only office of inspection in executory sales is to determine in what respect and how far the commodity complies with the contract, expressed or implied. Lee v. Saddlery Co., 38 Mo.App. 201; Cathings v. Hocke, 15 Mo.App. 51; Moore v. Emerson, 63 Mo.App. 137; Electric Light Co. v. Lamar, 140 Mo. 145; Scheiber v. Anderson, 101 F. 763; 2 Mechem on Sales, sec. 1340; Atkin Bros. Co. v. Grain Co., 119 Mo.App. 125. (3) Plaintiff did not lose its right of action by exercising ownership after discovering the corn was defective. It still had the right to retain the corn after discovering it was defective, and suing for the difference in its value as it actually was when it reached Shreveport, and its value at Shreveport had it been merchantable corn. Brewing Ass'n v. McEnroe, 80 Mo.App. 431; Martin v. Maxwell, 18 Mo.App. 176; Moore v. Emerson, 63 Mo.App. 137; 2 Mechem on Sales, sec. 1390; Long v. Armsby, 43 Mo.App. 253; Fairbanks Morse & Co. v. Baskett, 98 Mo.App. 52; Electric Light Co. v. Cleary, 77 Mo. 298; Atkin Bros. Co. v. Grain Co., 119 Mo.App. 126.
--The plaintiff is a corporation doing a wholesale and retail business at Shreveport, Louisiana, and the defendant Issy Landa, a commission business under the name of the Southern Grain Company at Kansas City, Missouri.
The testimony showed that on the 15th of December, 1903, plaintiff telegraphed at Kansas City as follows: "Ship one car ear corn quick." On the same day the defendant answered the plaintiff's telegram as follows: The M., K. and T. Railroad Company received the corn for Shreveport at Harwood, Missouri, on December 18, 1903. The bill for the corn amounted to $ 152,36 plus $ 66.28 for freight. A draft for the amount accompanied the bill of lading which was paid by plaintiff on December 24th, the corn having reached Shreveport the day previous. The corn was not inspected by plaintiff, but on December 26th he rebilled it to Lake End a station 56 miles beyond Shreveport. After the corn reached Lake End it was opened on the 29th of the month and inspected for the first time. The bill of lading permitted inspection before acceptance of the corn and payment of the draft.
The plaintiff's evidence tends to show that the corn upon being inspected proved to be in bad condition, some of it rotten; and that corn shipped at that season of the year, if sound would remain so, and would have been sound when it reached its final destination at Lake End. The defendant's testimony tends to show that the corn was sound when it was shipped; and that there was a leak in the cars which might have admitted rain and thus injured the corn. The plaintiff did not offer to rescind but retained the corn which was shown to have been of but little value. This is somewhat of a general statement of the facts of the case. The plaintiff's suit is to recover the money paid for the corn and the charges for freight. It recovered and the defendant appealed.
This case was here before on appeal by plaintiff and reported in 119 Mo.App. 119. It was reversed for errors in the refusal of the court to give a certain instruction for the plaintiff and for giving the following one at the instance of defendant "The court instructs the jury that notwithstanding the corn in the shuck was in bad condition when the car was opened, yet if the plaintiff neglected to avail itself of any opportunities, if any there were, to inspect said car of corn when it arrived at Shreveport, Louisiana, as instructed in bill of lading with draft attached, which bill of lading permitted inspection before acceptance of said corn and payment of draft, and defendant was not guilty of any fraud or fraudulent misrepresentations, then your verdict must be for the defendant." We held the instruction to be erroneous because in effect the jury were told, "that if plaintiff had opportunity to inspect at...
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