Whitmore v. Coates

• Decision Date: 31 March 1851
• Citation: 14 Mo. 9
• Parties: WHITMORE & PEGRAM v. COATES.
• Court: Missouri Supreme Court

14 Mo. 9

WHITMORE & PEGRAM

v.COATES.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

This was an action on a contract for the delivery of 3,000 bushels of barley by respondent to appellants; the contract was to the following effect, viz: John L. Coates agrees to deliver at St. Louis, Mo., to George Pegram & Co., 3,000 bushels prime barley, within the space of 30 days from October 20th, 1849--they, George Pegram & Co., agreeing to pay for said barley one dollar per bushel. This contract was in writing signed by the parties. The plaintiff in his petition sets forth the contract and alleges that within the time limited therein, he did tender to the appellant three thousand bushels of prime barley, and that the appellants refused to receive the same, &c.

The appellants in their answer admit the contract as stated in the petition of respondent; and also that they received 96 bushels of barley on account of said contract, within the time stated, but that the same was not prime barley. They further stated that respondent did not tender or offer to deliver to them prime barley sufficient to make up the said quantity of 3,000 bushels, but that the respondent broke his contract; that the barley offered to appellants on said contract was not prime barley but far inferior, and in no respect a compliance with said contract.

Upon the trial of this cause, Alexander Hallam, on the part of plaintiff, testified that he made the contract of respondent; that two lots, one of 47 and the other of 49 bushels, were tendered to appellants, and received by them without objection. On the 8th of November, 216 sacks were tendered to appellants, a portion of which was objected to. Whitmore, one of the appellants, said they would take a part of it, and proceeded to mark out about one-half of it as prime, which he said he would take. The whole was then taken back by me and sold to appellants at 75 cents a bushel, that being the highest market price for prime barley.

Thirteen hundred and forty-four sacks were afterwards tendered to them; they objected to it as not being prime barley. This witness also testified that all the lot tendered was prime barley, except some of the lot tendered on the 8th November, which he agreed was not prime barley. Witness also stated that he was a dealer in barley and other grains; that there are distinctions in barley-- that barley is classed as choice, prime, good, good fair and inferior; such distinctions are recognized by barley dealers. When the contract was made, choice barley was worth $1 10, prime $1 05--but it had fallen to 75 cents for prime. Mr. Whitmore said he was buying for Busch, the brewer, and would see him about it, did not know that he had a contract with Busch. Mr. Pegram afterwards said to witness that if the price of barley had not fallen, there would have been no difficulty about it. Witness proposed to appellant to leave it out, he choosing one man and they another, and let them tell the difference, and he would deduct that, if any were found. Appellant would not consent to this. The barley refused was sold by witness for prime barley, and brought the price of prime barley. There were about two bushels in each sack. On the cross-examination of this witness, he said there was another lot of 170 sacks tendered to appellants, and that the barley they objected to as not being prime barley, was sold to them at the highest market price that prime barley was then bringing. The appellants got Mr. Goodrich to look at the barley, and he said it was good, sound, merchantable barley. This witness, on direct examination, said that on the 27th and 29th October there was tendered to appellants, 51 sacks; on the 6th and 7th November, 170 sacks; on the 8th November, 216 sacks; on the 19th November, 1344 sacks--making more than 3,000 bushels.

Mr. Pomeroy said he was a dealer in grain--barley is distinguished as other grains are. The best is choice, next is prime, good, fair, &c., &c. Prime means good sound merchantable barley--prime barley should be fit to malt.

Mr. C. Jackson said there were two or three different qualities, but, in reality, only two distinctions, to-wit: malting and grinding barley. Best barley is choice, next is prime--both malting barley. Saw sample of barley in question, it was good sound merchantable barley. On his cross-examination this witness said, Mr. Whitmore showed me the barley--it was prime barley. Hallam showed me a better sample of same lot.

Mr. Pricton certified as to the distinctions in barley, choice, fine, &c.

Mr. Ganest examined the barley--some was prime, and some was not; it was good, but not prime barley; that is, he should not call it prime in that state of the market.

Mr. T. H. Warren sampled the barley in question; it was merchantable, sound and prime; it was not all equally good, but take it together it was prime barley.

On the part of the appellants, John P. Noyes said he bought six hundred sacks of the barley in question for Fulton Brewery. It was second rate barley, not prime. Said he did not buy it as prime barley, prime barley was worth ten cents more than he paid for this--that is, what the brewers call prime barley-- bought for Wainright.

Saml. Wainright bought 1200 bushels of the barley for Fulton Brewery; it was second rate barley, not prime, &c.

Mr. A. Memon buys for the brewery. Knows the distinctions in barley; saw this barley--it was not prime. Choice barley is better than prime; said he knew what he called a “prime article.”

A. N. Jones buys barley for the St. Louis Brewery; saw a sample, from 20 to 30 sacks, of the barley in question. It was fair barley, some of it prime, some of it neat fair; as a whole, it was neat prime barley. I know the distinction recognized by merchants. It all made good fair barley.

Mr. F. Jacoby, a brewer by trade, saw the barley in question; it was bad barley; took sample from 25 to 30 sacks. It was fair barley, but not prime; it was not white or full grain--oats in it; only saw one pile. On cross-examination he said prime barley is “right good white barley, full grain and clear.”

G. W. Busch said he knew the distinctions in barley; has been a brewer for 17 years. The barley in question was refused by him because it was not prime. The barley was second rate. Hallam offered it to me at any price. On his cross-examination he said he used only the best article, and by prime barley he meant the best article.

Alexander Hallam, recalled by plaintiff, says, the barley sold Noyes was the same tendered to Whitmore. There was some inferior, amounting to 38 sacks, but can't say it was that sold to Wainright. Defendant paid witness 75 cents a bushel for the barley refused on the contract--that was the price of prime barley.

The barley was sold to Pegram & Co., defendants, for Busch, and they paid the highest market price. Witness said he tendered 170 sacks of prime barley, in addition to what was before stated. This is all the evidence given. The plaintiff then asked six instructions, all of which were refused, and the court, on its own motion gave the following: 1. If the jury believe from the evidence that the barley tendered to the defendant was of the quality called for by the contract, they will find for the plaintiff. What quality of barley the contract called for, can be ascertained by mercantile usage of the terms employed, and the parties are presumed to use the terms according to the meaning attached to them by the mercantile community. 2. If the jury believe from the evidence that the defendants received, without objection, a quantity of barley under the contract, it was to that extent a performance of the contract, and if the last barley tendered was of as good quality as that previously received, it is evidence tending to prove that the barley tendered was what the contract called for, and what was meant by the contract. 3. If the jury believe from the evidence that the words “prime barley,” in the contract, were used among merchants, not as equivalent to or synonymous with “best” or ““choice” barley, but as equilateral to, or synonymous with “good, sound, merchantable” barley, and if the jury also believe that the barley tendered was “good, sound, merchantable” barley, they will find for the plaintiff. 4. If the jury find for the plaintiff, the measure of damages, is the difference between the contract price and the price which barley of that quality bore in the market at the time the tender was made, and the necessary charges attending the sale to other parties. 5. If the jury believe from the evidence that the barley tendered by the plaintiff to the defendant was not of as good quality as the contract called for, they will find for the defendant.

On motion of appellants' counsel, the following instructions were also given: 1. If the jury believe from the evidence that the plaintiff, through his request, took back from the defendant a quantity of 216 sacks, more or less, which defendant refused to keep on the contract sued on, it is evidence tending to show the jury the construction which the plaintiff put upon the contract, as well as his judgment of the quality of the barley. 2. If the jury believe that the barley which the plaintiff took back was part of the 3,000 bushels tendered, and that without the quantity so taken back, the 3,000 were not tendered, they will find for the defendant.

The jury rendered a verdict for the plaintiff below, and defendants moved to set the same aside for reasons filed. Upon the hearing of said motion, there was a disagreement between the counsel as to what the witness, Hallam, said in regard to the tender of the 170 sacks, under the contract. The defendant denying that Hallam had made any such statement, the plaintiff insisting that he had. The court having no distinct recollection on the subject, recalled Hallam on the hearing of said motion, and inquired of him what his testimony on that point was. The defendants objected to his being...