Wing v. Mid-Continent Seeds

Decision Date09 December 1950
Docket NumberNo. 38033,MID-CONTINENT,38033
Citation170 Kan. 242,225 P.2d 78
PartiesWING v.SEEDS, Inc.
CourtKansas Supreme Court

Syllabus by the Court.

1. As between a seller and a buyer, it is the general rule that in the absence of a contrary intention or agreement the risk, as to property accidentally lost, follows the title and if title has not passed the loss falls on the seller but if it has passed the loss falls on the buyer.

2. Where the contract of sale does not provide as to passage of title, the primary consideration in determining whether title has passed is the intention of the parties, and if it was the intent the title passed at a certain time or on the happening of a certain event, that intent governs.

3. The instructions to the jury must be considered as a whole and all must be considered to determine whether the theory and contentions of each party are presented.

4. An erroneous instruction does not of itself require a reversal if all of the instructions, considered together, substantially state the law of the case.

5. The record examined in an action to recover the value of seed accidentally lost, and held, the trial court did not err:

A. In failing to sustain the defendant's demurrer to the plaintiff's evidence.

B. In failing to sustain the defendant's motion for a directed verdict in its favor.

C. In the instructions to the jury.

D. In failing to sustain defendant's motion for judgment on the answers to special questions submitted to the jury.

James P. Mize, of Salina, (C. L. Clark and Jason K. Yordy, both of Salina, on the brief) for appellant.

John Q. Royce, of Salina, (LaRue Royce, E. S. Hampton, H. H. Dunham, Jr., and H. G. Engleman, all of Salina, on the brief) for appellee.

THIELE, Justice.

This was an action wherein plaintiff sought recovery for the value of seed sold the defendant. From a judgment in favor of the plaintiff the defendant appeals.

The petition alleged that on January 19, 1949, the plaintiff sold defendant approximately 400 bags of Atlas Sorgo weighing 40,000 pounds, for $1700, the sale being confirmed in a written document later mentioned; that on March 1, 1949, plaintiff notified the defendant the seed had been duly inspected and sealed in bags by the Kansas Crop Improvement Association and that it had been ready for delivery for sometime but defendant failed to pick up and transport the seed and without fault of plaintiff the seed was destroyed by fire; that demand for payment had been made on defendant and refused. The written confirmation of purchase, a portion of which is pleaded, was later received in evidence. To avoid repetition we here refer to the entire document. The confirmation is on a printed form entitled 'Confirmation of Purchase', shows in its caption 'Mid-Continent Seeds, Inc. Salina, Kansas' as well as dates, purchaser and other information. At the bottom are printed provisions as to weights and grades, the right of the buyer to extend time of shipment and other provisions including 'Above seed to be nucrop normal germination and comply with existing seed regulations.' At the bottom is a form for signature by the purchaser, which is executed by M. E. Hurlburt, concededly the defendant's manager. Appropriate blanks on the form are filled in to show date of purchase to be '1-19-49' when ship 'Middle of Feb., 1949' and that the corporation had purchased of 'Wayne Wing' Minneapolis, Kansas, 'F. O. B. Farm' approximately 400 bags, 40,000 pounds, 'Cert. Atlas Sorgo' at $4.25 per cwt. '99 Pure 92 Germ. Noxious Free.'

Defendant's answer was a general denial, a denial that the alleged written contract set forth in the petition was complete, and a denial that plaintiff had performed or that the defendant had breached the contract.

The abstract does not include any reply which may have been filed.

A trial was had. After both parties had rested, defendant moved for an instructed verdict, the motion being denied. The cause was submitted to the jury under written instructions, to two of which defendant objected. The jury returned a verdict in favor of the plaintiff and answered special questions, later mentioned, but which need not be set forth. After the verdict was returned defendant moved for judgment upon the answers to the special questions, moved to have the answers to certain questions set aside and moved for a new trial. These three motions were denied and judgment was entered on the verdict. The defendant appeals.

Although in its abstract the appellant specifies error in twelve particulars, in its brief it presents only two general questions. Referring to four specifications, i. e. that the trial court erred (a) in failing to sustain its demurrer to plaintiff's evidence, (b) in failing to sustain its motion for a directed verdict, (c) in failing to sustain its motion for judgment on the answers to special questions, and (d) in entering judgment upon the verdict, it contends first that the trial court erred in refusing judgment for it, its argument being presented under three subdivisions. Referring to its specification that the trial court erred in giving instruction No. 5 to the jury, it argues the instruction was wrong as a matter of law, its argument being presented under three subdivisions. Its other specifications of error that the trial court erred in the admission of testimony, in refusing to set aside the answers to five special questions, and in denying a new trial, except that as to the latter it is mentioned in presenting the second general question to the extent later treated, are not discussed and are considered as abandoned. See e. g. Sams v. Commercial Standard Ins. Co., 157 Kan. 278, 139 P.2d 859. As to a new trial the appellant not only makes no contention for a new trial but does ask that the judgment rendered be reversed with directions to render judgment for the appellant. Strictly speaking, trial errors which should have been presented by the motion for a new trial are not before us for consideration with the exception of the instructions to the jury.

Under its argument that the trial court erred in refusing to enter judgment in its favor appellant does not separately present and argue the ruling on its demurrer to the evidence or on its motion for a directed verdict. It does make a statement of facts, favorable to itself, which is the basis for its contention of error. Under the law however, plaintiff is entitled to an interpretation of the evidence favorable to him, and such an interpretation discloses the following: In 1948 plaintiff had raised a crop of Atlas Sorgo seed and sent a sample to the Kansas Crop Improvement Association which made tests for germination and purity and issued its certificate. Plaintiff offered the seed for sale to defendant, which agreed to purchase 40,000 pounds. Inasmuch as plaintiff had no delivery equipment for that quantity the purchaser was to take delivery at plaintiff's farm. The confirmation of purchase heretofore noted was prepared and executed by the defendant and given to the plaintiff. At the time the sale was made on January 19, 1949, it remained for plaintiff to have the seed cleaned and placed in bags for delivery by the 'middle of Feb. 1949'. He had some difficulty getting cleaning equipment, informed defendant and was given such time as he needed. On February 17, 1949, the work of cleaning the seed and putting it in bags was completed, there being a total of 476 bags filled, and on February 28, 1949, the bags of seed were inspected and sealed by the Kansas Crop Improvement Association. A part of the bagged seed was stored in a metal bin and a part in a close-by building. On March 1, 1949, plaintiff went to the defendant's office and notified it that the seed sold to it was ready for delivery. At that time defendant notified plaintiff it had no place to put the seed. Defendant made no effort to get the seed and its value as seed was destroyed by a fire which occurred on plaintiff's farm on March 20, 1949. We need not detail other evidence which tended to show there was an agreement, or that there was not, that an additional test of the seed should be made or that defendant would send its trucks for the seed on March 22, 1949. The showing made by the plaintiff's evidence was sufficient to make a prima facie case and the trial court did not err in ruling on the defendant's demurrer to plaintiff's evidence nor in refusing to direct the jury to render a verdict in defendant's favor.

Appellant's argument that the trial court erred in refusing to enter judgment for the defendant is predicated on a contention that the court had held that the title to the seed was in the plaintiff at all times until it was loaded on defendant's truck for delivery to the defendant; that loss followed the title and as plaintiff held title at the time of the fire the loss was his and not the defendant's. Whether procured at the request of the defendant or not does not appear from the abstract, but among other instructions given was the following: '4. You are instructed that the written agreement concerning the certified Atlas Sorgo involved in this case expressly contains the provision 'F. O. B. Farm'. The plaintiff concedes by his amended petition herein that this provision is included in his contract with Mid-Continent Seeds, Inc. You are instructed that this provision 'F. O. B. Farm' has a well defined business meaning and that it means in this case that Wayne Wing agreed to deliver the Atlas Sorgo to Mid-Continent Seeds by placing the Atlas Sorgo 'free on board the carrier or truck at his farm' for shipment to Mid-Continent Seeds, Ins. You are further instructed that as a matter of law the title to this Atlas Sorgo remained in Wayne Wing at all times until he placed the Atlas Sorgo free on board such carrier or truck for shipment at his farm.' (Emphasis supplied.)

The appellee objected to the instruction on the ground it did not state the law applicable to ...

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