The Kimball-Fowler Cereal Company v. The Chapman & Dewey Lumber Company

• Decision Date: 06 May 1907
• Citation: 102 S.W. 625,125 Mo.App. 326
• Parties: THE KIMBALL-FOWLER CEREAL COMPANY, Appellant, v. THE CHAPMAN & DEWEY LUMBER COMPANY, Respondent
• Court: Kansas Court of Appeals

102 S.W. 625

125 Mo.App. 326

THE KIMBALL-FOWLER CEREAL COMPANY, Appellant, v. THE CHAPMAN & DEWEY LUMBER COMPANY, Respondent

Court of Appeals of Missouri, Kansas City

May 6, 1907

Appeal from Jackson Circuit Court.--Hon. James H. Slover, Judge.

AFFIRMED.

Judgment affirmed.

Sherman & Fletcher, for appellant, filed argument.

Ashley Gilbert & Dunn for respondent.

OPINION

ELLISON, J.

This action is for the price of a lot of "corn chops" sold by plaintiff to defendant. The judgment in the trial court was for the defendant. Plaintiff's petition charges that by oral agreement it sold and agreed to ship the chops to defendant at Marked Tree, Arkansas, and that they should "arrive" there in sound and merchantable condition which defendant agreed to pay for if they "arrived" at destination in such condition. It is then alleged that plaintiff fully complied with its agreement; but that defendant refused to accept the chops "on date of arrival," or after-wards, by reason of which refusal it was compelled to reship to another market where the chops "were sold at a greatly reduced market value, and as a consequence the plaintiff was damaged in the sum of $ 174.70." The defendant answered by a general denial and by setting up a contract whereby the chops were to be "delivered" to it at Marked Tree in sound merchantable condition. Defendant then alleges that there was delivered to it on May 21 a lot of chops which were spoiled and were unmerchantable and for that reason they were rejected and plaintiff notified. That plaintiff thereupon requested defendant to unload them from the car and expose them to the air, and that it did so. That it found it could use forty-one sacks for feeding purposes, for which it paid plaintiff at the rate of the contract price, and at the latter's request shipped the balance back to plaintiff at Kansas City. Plaintiff's reply was a general denial of the answer.

The record presented leaves very little for the judgment of this court. The evidence disclosed that the contract was in writing and that such contract, properly interpreted, called for a delivery of the chops by plaintiff to defendant at Marked Tree in sound and merchantable condition. The court gave all of plaintiff's instructions except as it modified them by a proviso, that the finding should not be for the plaintiff if the contract was rescinded as alleged by the defendant. The motion for new trial did not complain of such action of the court and hence the objection cannot be considered.

But the plaintiff also asked a peremptory instruction that the verdict should be for it under the evidence. In considering this we will perhaps necessarily give plaintiff the benefit of a consideration of the propriety of the court's amendment of its instructions in the manner indicated. We do not regard that there was any good reason which would have justified the court in peremptorily finding for the plaintiff. The written contract was in...