Warsham v. Lewis
| Decision Date | 02 March 1926 |
| Docket Number | No. 3999.,3999. |
| Parties | WARSHAM v. LEWIS. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Mississippi County; Frank Kelly, Judge.
Action by Tom Warsham against George 0. Lewis. Judgment for plaintiff, and defendant appeals. Affirmed.
J. M. Haw, of Charleston, for appellant. Boone & McDowell, of Charleston, for respondent.
This is an action for damages for breach of a contract in the sale of some corn, in which plaintiff obtained a verdict and judgment for damages in the sum of $117.60, from which defendant has appealed.
Error is first assigned in relation to the admission of incompetent evidence and the refusal of competent evidence. Appellant fails to point out the particular evidence to which objection is made. We have carefully read the record in this case, and find no material error in the admission or rejection of evidence.
Defendant assigns as error the giving of plaintiff's instruction No. 1, which is as follows:
"The court instructs the jury that, if you believe and find from the evidence that plaintiff sold defendant a pen of corn to be delivered to the railroad at Crosno for 86 cents per bushel, and that in pursuance to said sale, delivered part of said corn to Lewis, which was by Lewis accepted, and that afterwards Lewis refused to accept the balance of said pen of corn, and that the balance of said corn was of the same quality and grade as the corn delivered to Lewis under said purchase, then your verdict will be for the plaintiff on his petition; and, if you find for the plaintiff, you will assess his damages in such sums as you find from the evidence that he sustained because of Lewis' failure to carry out his part of said contract, and in assessing said damages you are instructed that you will take into consideration the amount of corn, if any, lost or destroyed out of four loads of corn delivered to Crosno, under said contract, if you find that there was four loads of corn so delivered and refused by Lewis, and the amount of loss sustained in the price of said corn by plaintiff because of defendant's refusal to carry out his part of said contract not to exceed $117.60." (Italics ours.)
It is charged that this instruction, in the portions we have italicized, assumes that defendant failed to carry out his part of the contract, a controverted fact. The instruction should be construed, not as to the effect of a particular phrase alone, but the meaning should be gathered from the...
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Hein v. Peabody Coal Co.
... ... whole and considered in its entirety. When so viewed it is ... clear and unequivocal and was properly given. Warsham v ... Lewis, 281 S.W. 82; Boles v. Hendrickson, 290 ... S.W. 638; Burton v. Phillips, 7 S.W.2d 712; ... Taylor v. Scherpe & Koken Arch Iron ... ...
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McClintock v. Price
...and paragraphs. West v. St. Louis Public Service Co., supra; Mendenhall v. Neyer, 347 Mo. 881, 149 S.W.2d 366, loc.cit. 371; Warsham v. Lewis, Mo.App., 281 S.W. 82. It is likewise commonplace that, "instructions to juries must be read and construed together and, as a whole, as stating the l......
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Watkins v. West
...and against the defendant William E. West.' We cannot say that the instruction, when read as a whole, as it should be (Warsham v. Lewis, Mo.App., 281 S.W. 82; White v. Kansas City Public Service Company, Mo.App., 140 S.W.2d 711, 712) should be held to be prejudically erroneous under the cir......