Wilson v. Moran

• Decision Date: 08 February 1921
• Docket Number: Case Number: 10028
• Citation: Wilson v. Moran, 197 P. 1051, 82 Okla. 34, 1921 OK 40 (Okla. 1921)
• Parties: WILSON v. MORAN.
• Court: Oklahoma Supreme Court

1921 OK 40

197 P. 1051

82 Okla. 34

WILSON v. MORAN.

Case Number: 10028

Supreme Court of Oklahoma

Decided: February 8, 1921

Syllabus

¶0 1. Appeal and Error--Trial--Discretion of Court--Order of Proof. The question of the mere order in which proof is introduced at a trial rests very much within the sound discretion of the trial court: and unless it clearly appears that this discretion has been abused, to the injury of the complaining party, a reversal will not be ordered on this ground.

2. Same--Burden of Proof and Duty to Open mid Close--Sales--Defense of Breach of Warranty. In the trial of a cause, when the jury has been sworn the party on whom rests the burden of the issue must first produce his evidence, unless the court for special reasons otherwise directs, and in a case where the plaintiff sues for damages for a breach of contract for the sale and delivery at a stipulated price per bushel of blue grass seed, alleging that the defendant breached the contract by refusing to accept the shipment at the place of delivery, and the defendant admits in his answer that he refused to accept such shipment because the plaintiff warranted the blue grass seed to be of the kind and quality of that portion examined by the defendant at the time of purchase, and alleges in his answer that he examined the seed on arrival of the shipment and that he found the seed inferior in quality to that portion of the same examined by him at the time of the purchase, and for that reason alone he refused to accept the shipment, and where the plaintiff in his reply to the answer of the defendant specifically denies that he warranted the seed to be of a particular kind or quality, and alleges that the defendant had ample opportunity to, and did, fully examine the entire lot of seed at the time of purchase, and fully satisfied himself of the quality thereof, held the trial court did not abuse its discretion in holding that the burden of proof was upon the defendant, and directing him to open and close the case; and (b) where the record discloses that the defendant's entire defense was predicated upon the theory that the plaintiff warranted the quality of the seed, and no contention was made upon the trial by the defendant that the plaintiff otherwise failed to comply with the contract of the sale, further held, that the court conferred a benefit rather than an injury upon the defendant in ordering and directing that he assume the burden of his defense and that he open and close the same.

3. Trial--Demurrer to Evidence--Consideration. The test applied to a demurrer to the evidence is that all the facts which the evidence in the slightest degree tends to prove, and all inferences and conclusions which may be reasonably and logically drawn from the evidence, are admitted, and the court cannot weigh conflicting evidence, but must treat that as withdrawn which is most favorable to the demurrant.

4. Appeal and Error--Review--Questions of Fact--Verdict. In a law action tried to a jury this court will not weigh the evidence on appeal, but where there is any competent evidence reasonably tending to support the verdict, and the record presents no reversible error of law occurring during the trial, the verdict of the jury and the judgment of the court thereon will not be disturbed.

5. Sales--Action for Damages for Failure to Accept--Instructions--Evidence. Record examined, and it appearing therefrom that there is competent evidence reasonably tending to support the verdict of the jury, and that the instructions of the court substantially correctly stated the law of the case to the jury, and otherwise there was committed no reversible error in the trial of the cause, the judgment of the trial court must be affirmed, and it is so ordered.

Langley & Langley and John B. Turner, for plaintiff in error.

J. W. Sullinger and Campbell, Leahy & Brewster, for defendant in error.

JOHNSON, J.

¶1 This is an appeal from the district court of Mayes county, Hon. Preston S. Davis, Judge. On February 8, 1917, George Moran, as plaintiff, commenced this action against the defendant, James S. Wilson, to recover damages in the sum of $ 1,900.12, for the failure of the defendant to accept four car loads of blue grass seed, shipped by the plaintiff from King City, Mo., to the defendant at Paris, Ky. The cause was tried to the court and jury and resulted in a verdict in favor of the plaintiff for the sum of $ 1,530.49, from which judgment the defendant has regularly appealed to this court. For convenience, the parties will hereinafter be referred to as plaintiff and defendant, respectively, as they appeared in the trial court. The plaintiff alleged in his petition that on or about the 15th day of July, 1916, he sold to the defendant his holding of stripped blue grass seed then on hand in his warehouse in King City, Missouri, the same being 4,721 2-9 bushels, at an agreed price of 90 cents per bushel, to be thereafter shipped to the defendant at Paris, Ky., amounting in the aggregate to the sum of $ 4,249.10, when the same was loaded on the cars; that the shipment went forward with draft attached to shipper's order, notify, bills of lading; that the defendant refused to accept and pay for same on arrival at Paris, Ky., and that after several days delay the same was returned to the plaintiff to King City, Mo., unloaded by him, and placed in his warehouse; and that by reason of the defendant's failure to accept the same as per contract the plaintiff was compelled to pay freight on the outbound and inbound movements of the shipment in the sum of $ 529.22 each, and $ 106 demurrage, and expense of unloading the seed of $ 27.50, and suffered loss on account of the decline in the market in the sum of 15 cents per bushel, amounting to $ 708.18. At the close of the evidence the plaintiff, on application to the court, was permitted to amend his petition to conform to the proof by striking out the item of $ 708.18, caused by the decline in the market, and in lieu thereof alleged damages for insurance paid, $ 35; for expense in loading the said seed when resold, $ 27.50; and for rent of warehouse for five and a half months, $ 75.00, decline in market of 5 cents per bushel, aggregating $ 215; making the total amount of damages claimed $ 1,545.49, instead of $ 1,900.12, the amount claimed in his original petition. The defendant's answer consisted of a general denial, except in so far as allegations "are hereinafter admitted," and for a further defense alleged a breach of warranty of the quality of the seed sold. This part of defendant's answer is quite voluminous, the essential portions of which are as follows:

"The defendant for further answer states that before and at the time the defendant and plaintiff undertook to enter into the verbal agreement for the sale of said blue grass seed by the plaintiff to the defendant at 90 cents per bushel, the said seed was (with the exception of 400 or 500 bushels hereinafter mentioned), stored in bulk in a section of plaintiff's warehouse at King City. Missouri, and that the said bulk of seed extended up and into the rafters at the top of the said section of said warehouse and that the only opportunity the defendant had of examining said seed was such examination as he could and did by climbing a ladder on the outside and going to the top of said warehouse and looking down on the top of said seed and that he could only see to examine what was on top, or within arm's reach from the top, and defendant states that because of the impracticability of making any other examination of said seed, the plaintiff, in order to induce the defendant to enter into said contract, stated and represented to the defendant that all of said seed was of the same kind, character and quality as the portion he could and did inspect from the top of said warehouse, saving and excepting 500 to 700 bushels which the plaintiff represented was all of the seed that was inferior to the seed at the top of said warehouse and which the defendant could and did inspect, and the plaintiff represented that the said inferior quality was at or near the bottom of said section of said warehouse."

¶2 He further alleged, in substance, the arrival of the seed at Paris, Ky., and his examination thereof, and that he discovered that the said seed was not as represented by the plaintiff, and his notifying the plaintiff that he would not accept the same, and concluded his answer with the following allegation:

"The defendant thereupon refused to accept or receive said seed and notified the plaintiff that he refused to accept or receive said seed and that the defendant refused to pay for said seed because of the plaintiff's said prior breach of said contract, and refused to honor or pay the draft mentioned in the petition for purchase money of said seed because of plaintiff's prior breach of said contract, and that on account of the defendant's refusal to receive or accept said seed the plaintiff reshipped said seed to King City, Missouri, as stated in the petition."

¶3 To this answer the plaintiff filed a reply, denying generally and specifically all the material allegations of the defendant's answer pleading a breach of warranty. Soon after the commencement of the trial, and after counsel for plaintiff and defendant, respectively, had made their opening statements, which statements are not included in the record, the court announced "that the burden of proof in this case is upon the defendant, and that he shall, therefore, produce his evidence first and shall have the opening and closing of the argument in this case." To this action of the court the defendant excepted. The defendant's assignments of error are as follows:

1. "The court erred in holding that the burden of proof was upon the defendant."

2. "The court erred in overruling defendant's demurrer to plaintiff's evidence."

3. "The court erred in excluding competent evidence offered by defendant."

4. "The court erred in giving to the jury instructions

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