Wehmeier v. Yontz
| Decision Date | 03 December 1923 |
| Citation | 256 S.W. 145,215 Mo.App. 240 |
| Parties | R. L. WEHMEIER, Respondent, v. A. C. YONTZ, Appellant. * |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Moniteau County.--Hon. Roy D. Williams Special Judge.
AFFIRMED.
Judgment affirmed.
S. C Gill and J. B. Gallagher for respondent.
Embry & Embry for appellant.
--The present case makes its second appearance here. This time it is the defendant who appeals, but the first appeal was by plaintiff. [See Wehmeier v. Yontz, 208 Mo.App. 434.]
When the trial began, the petition was in three counts. The first alleged a contract for the sale by plaintiff to defendant of certain hogs which defendant, it was charged, refused to accept, wherefore judgment was asked for $ 555.27 damages, that being the difference between the contract and the market price.
The second count pleaded a contract for the sale of said hogs, wherein it was provided that each party should put up with a bank his check for $ 500 to be paid as a penalty to the other in case of violation of the contract on his part. It was then alleged that plaintiff performed but defendant refused to accept said hogs and refused to permit said check to be paid him, wherefore judgment for the $ 500 was asked.
The third count was a suit on account for $ 140.15 alleged to be due plaintiff from defendant.
The answer, in one count, set up the defense that plaintiff was the one who breached the contract by failing to deliver the hogs on the day agreed upon, subsequent to the contract, and charged that under the terms of said contract the sum of $ 500 was to be paid, as liquidated damages, by the party who failed to keep his contract, wherefore that amount was due from plaintiff. The answer admitted that, at the institution of the suit, there was a balance of $ 140.15 (the amount specified in plaintiff's third count), due plaintiff from defendant on account, which should be credited on the $ 500 due defendant from plaintiff leaving a balance of $ 359.85, for which defendant prayed judgment. Plaintiff duly filed reply.
At the close of all the evidence, the plaintiff, by leave of court, amended the first count of his petition, so that it, instead of seeking as damages the difference between the contract and market price, sought to recover the sum of $ 500 as liquidated damages; and when this amendment was allowed, plaintiff dismissed the second count.
The jury returned a verdict for plaintiff in the sum of $ 500 on the first count, and for $ 140.15 on the third count.
On October 3, 1919, the parties entered into the following written contract:
Each deposited in bank his check for $ 500 payable to the other.
At 9:30 a. m., December 10, 1920, plaintiff received from defendant the following telegram:
Plaintiff did not have the hogs but he secured them, and, according to plaintiff's evidence, he caused to be served upon defendant at 5 o'clock that afternoon, a written notice that the hogs would be at the Missouri Pacific Stockyards in Tipton, Mo., "as per contract."
The men from whom plaintiff obtained the hogs brought them on December 10, 1920, in several truck loads, to the stock yards at Tipton, arriving there after nightfall; and all but six or seven of them, or at least the greater portion of them, had been weighed before 12 o'clock that night. The weights, in order to save time, were made and copied, one being for the use of the sale from the men to plaintiff and the other for the sale by him to defendant. The defendant was there looking after the hogs and "he would inspect them as they came on and off the scales." As the hogs were being weighed they were put into a pen. Those at the yards had lanterns by which they could examine the hogs and see what they were doing. Defendant made no objection to anything that was being done until shortly after twelve o'clock when he held up his hand and asked, "Who are you weighing these hogs to?," and then said, "Don't weigh any more hogs to me; it is twelve o'clock," and refused to take them.
Plaintiff introduced evidence tending to show that it was the custom, when hogs were purchased, for the buyer to notify the seller the day before he wanted delivery, in order to give the seller sufficient time to make delivery on the day desired; that such custom was well known to both parties; that the hogs brought to the stock yards corresponded to those mentioned in the contract; and that the market price for such hogs in Tipton on December 10, 1920, was $ 9 per hundred pounds.
A motion has been filed by plaintiff praying the court to dismiss defendant's appeal on the ground that his statement violates our rule and that the brief fails to specify wherein it is claimed that the court erred. An examination of defendant's brief discloses that it is not entirely open to the charges brought against it in the motion, hence the motion to dismiss is overruled.
The construction to be given the contract in the light of the conduct of the parties, and other points, were decided upon the other appeal; and the evidence on the second trial is not of a character to reopen any of such questions so decided then.
In the former appeal the ruling was made that it was for the jury to say (1) whether the...
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