Western States Portland Cement Company v. Bruce

• Decision Date: 09 January 1912
• Citation: 142 S.W. 783,160 Mo.App. 246
• Parties: WESTERN STATES PORTLAND CEMENT COMPANY, Appellant, v. JOHN W. BRUCE, Respondent
• Court: Kansas Court of Appeals

142 S.W. 783

160 Mo.App. 246

WESTERN STATES PORTLAND CEMENT COMPANY, Appellant, v. JOHN W. BRUCE, Respondent

Court of Appeals of Missouri, Kansas City

January 9, 1912

Appeal from Buchanan Circuit Court.--Hon. W. D. Rusk, Judge.

AFFIRMED (conditionally).

T. H Stanford and Eugene Silverman for appellant.

(1) The cause should not have been submitted to the jury as to respondent's second counterclaim. His evidence showed that he had not completed his contract with the Hartman Bridge and Construction Company, and did not know how much had been delivered to that company nor whether he would be called upon to deliver the remainder. Under this state of the testimony, there was nothing upon which to base a verdict and the testimony was so indefinite and uncertain as to require the exclusion of the second counterclaim from the consideration of the jury. Respondent's instruction No. 2 should therefore not have been given. (2) The motion for a new trial should have been sustained. The action is for breach of contract, and the measure of damages is definite and certain. If respondent was entitled to recover, he was entitled to recover just twice the amount allowed by the jury upon each counterclaim. This is evidence of misconduct on the part of the jury, which requires a setting aside of the verdict. "Where the law itself prescribes the rule of damages to which alone the plaintiff is entitled if he recover, a disregard of the law and an award of a sum not warranted by the rule is such evidence of passion or prejudice, or more frequently, of mistake or misapprehension as will render it the duty of the court to set aside the verdict." Bayliss on New Trials and Appeals, page 505; Morris v. Railroad, 136 Mo.App. 398; Real Estate Company v. Investment Company, 150 Mo.App. 626; Cole v. Armour et al., 154 Mo. 333; Morris v. Railroad, 136 Mo.App. 398; Watson v. Harmon, 85 Mo. 447; Powers v. Gouraud, 44 N.Y.S. 249; McDonald v. Walter, 40 N.Y. 551.

Mytton & Parkinson for respondent.

(1) The motion for a new trial filed herein makes no objection that the recovery is inadequate, hence it is waived and cannot be urged on appeal. Cyc. of Law and Procedure, pp. 750, 751, pars. 11, 12; State ex rel. v. Bank, 144 Mo. 381; Elley v. Caldwell, 158 Mo. 376; Blanton v. Dold, 109 Mo. 69; Weese v. Brown, 102 Mo. 299; Turner v. Johnson, 95 Mo. 450. (2) An objection that the damages awarded by the jury are excessive or inadequate must be specifically alleged in the motion for a new trial. Cyc. of Law and Procedure, vol. 29, page 954, and cases cited. (3) An objection that the recovery is inadequate is not raised by an assignment of error in the motion for a new trial that the verdict is contrary to the law and the testimony. Payne v. McLean, 44 Ill.App. 354. Or the verdict is against the evidence. Star Brewery v. Croake, 57 Ill.App. 287. Or that the verdict is against the evidence and the weight of the evidence.

OPINION

JOHNSON, J.

Plaintiff, a corporation engaged in the business of manufacturing Portland cement at Independence, Kansas, brought this suit in the circuit court of Buchanan county against defendant, a dealer in cement at St. Joseph, to recover a balance alleged to be due on an account for cement sold and delivered to defendant. The answer of defendant consisted of a general denial and a plea of partial payment. In addition to the answer defendant filed a counterclaim in two counts. In the first count defendant alleges that in October, 1909, he and plaintiff entered into a contract wherein plaintiff sold and agreed to deliver 12,000 barrels of a specified brand of cement f. o. b. cars at St. Joseph at eighty cents per barrel, net, "said cement to be shipped as ordered it being further understood and agreed that the defendant herein should order said cement as it might be required by the Rackliffe & Gibson Construction Company for use by them in the work of paving St. Joseph avenue in the city of St. Joseph, Missouri, and that the defendant was to pay the plaintiff for the cement to be delivered under said contract at such time as he should receive payment for said cement from the Rackliffe & Gibson Construction Company." Further it is alleged that at various times plaintiff made shipments of cement on the orders of defendant in the aggregate amount of 1980 barrels; that plaintiff refused to ship the remainder of 10,020 barrels on the order of defendant thereby committing a breach of the contract and that at the time of said breach the market value of the cement had advanced to $ 1.28 per barrel. Judgment was prayed for $ 4,809.60, the amount of the difference in value of 10,020 barrels at eighty cents and at $ 1.28 per barrel.

In the second count defendant alleges that in July, 1909, he and plaintiff entered into a contract by the terms of which plaintiff sold and agreed to deliver to defendant f. o. b. cars at St. Joseph, 3,000 barrels of cement at seventy-nine cents per barrel "said cement to be shipped as ordered, it being further understood and agreed that the defendant herein should order said cement as it might be required by the J. H. Hartman Bridge and Construction Company of St. Joseph, Missouri, for use by them in the work of building the Upper Whitehead main sewer in the city of St. Joseph, Missouri, and that the defendant was to pay the plaintiff for the cement to be delivered under said contract at such time as he should receive payment for said cement from the J. H. Hartman Bridge and Construction Company." Defendant claims plaintiff delivered 1750 barrels on the orders of defendant but refused to deliver the remainder of 1250 barrels at a time when the market value of the cement had increased to $ 1.28 per barrel. Judgment is prayed on this count for $ 612.50.

In the reply plaintiff admits that it entered into contracts with defendant for the sales of 12,000 and 3,000 barrels of cement respectively at the prices alleged in the counterclaim; that it delivered 1980 barrels on the first contract and 1750 barrels on the second and that it refused further performance of the contracts, but plaintiff denies that the contracts contained the terms of payment alleged in the counterclaim and alleges that defendant agreed to pay plaintiff "for each shipment of said cement so ordered by him within thirty days from the date of such shipment" and that "defendant made default in the performance of said contracts on his part in this, that he did not pay plaintiff for each shipment of said cement delivered to him."

At the trial it was agreed that defendant was entitled to a credit on the account sued upon, reducing its amount to $ 467 and defendant agreed that plaintiff should have judgment on the petition for that amount though defendant contended that the account was not due. This admission reduced the issues to those raised by the counterclaim and the reply, and throughout the trial the parties and the court treated the question of whether the terms of payment prescribed in the contracts were those alleged by plaintiff or were those stated by defendant as the paramount issue of fact to be solved by the jury.

The instructions given at the request of each party told the jury in effect to find for defendant on the counterclaim if they believed from the evidence the contracts provided that payment should not be made to plaintiff until defendant had been paid for the cement by his customers for whose benefit the contracts were made and, on the other hand, to find for plaintiff on the counterclaims if the jury believed that the contracts required defendant to pay for each shipment in thirty days from the date of the shipment. On the latter hypothesis the jury were instructed "that plaintiff had a right to cancel said orders and contracts and defendant is not entitled to recover upon his counterclaims or either of them and your verdict must be for plaintiff thereon."

In their verdict the jury found for plaintiff on the petition for $ 467 and for defendant on each count of the counterclaim. On the first the damages were assessed at $ 1900, and on the second at $ 240. Judgment was rendered in accordance with this verdict and plaintiff appealed.

The position of plaintiff thus is stated by its counsel: "Appellant makes three points only against the verdict in this case: First, that the verdict upon both counterclaims is against the great weight of the evidence, and is against the weight of the evidence to such an extent that the trial court should have set the same aside, and this court should set the same aside. Second, that the evidence upon respondent's second counterclaim was of such character as to furnish nothing for submission to the jury, and as a result thereof, respondent's instruction No. 2 should not have been given to the jury; and, third, that this action being based upon contract with a definite and fixed measure of damages prescribed by the law, and the verdict having been for but half of the amounts to which respondent was entitled if the jury found that the contracts were made as alleged by him, the verdict shows that it was the result of passion, prejudice, sympathy or misapprehension, and must be set aside." We shall consider these points in the order of their statement.

One of the grounds of plaintiff's motion for a new trial was that the verdict was against the weight of the evidence and in overruling the motion the learned circuit judge evidently found that the verdict not only was supported by substantial evidence but by the weight of the evidence, since, if he had believed otherwise, it would have been his duty under the statute to grant a new trial. In law cases the rules in this state do not authorize an appellate court to weigh evidence except for the single purpose of...