Turley v. National Ammonia Co.

• Decision Date: 04 October 1927
• Docket Number: No. 19828.,19828.
• Citation: 299 S.W. 53
• Parties: TURLEY et al. v. NATIONAL AMMONIA CO.
• Court: Missouri Court of Appeals

299 S.W. 53

TURLEY et al. v. NATIONAL AMMONIA CO.

No. 19828.

St. Louis Court of Appeals, Missouri.

October 4, 1927.

Rehearing Denied October 25, 1927.

Writ of Certiorari Granted by Supreme Court December 2, 1927.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be officially published."

Action by Joseph S. Turley and another, doing business as Turley & Robinson, against the National Ammonia Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Anderson, Gilbert & Wolfort, of St. Louis, and M. U. Hayden, of Detroit, Mich., for appellant.

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

BENNICK, C.

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 in the sum of $701.83, with interest amounting to $100.50, aggregating the total sum of $802.33, 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, 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 22d or 23d; 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...