125 Mo. App. 703 | Mo. Ct. App. | 1907
This suit was begun in the justice court, whence it was taken by appeal to the circuit court where judgment was rendered for defendant, from which plaintiffs appealed.
The statement of plaintiff’s cause of action is substantially as follows. In August, 1905, plaintiffs purchased from defendant a carload of hogs at the price of $5.75 cwt. to be delivered in the following month of September. That defendant represented that the hogs were of the kind and description that would sell within ten cents of the highest market price any hogs would be sold for on the market on the days said hogs would be sold. And that he agreed that if the hogs failed to sell within the price named when they were
Plaintiffs allege that said hogs were not of such kind and quality that they would sell at the price represented; that they were inferior in kind and quality; that sdme of them were pregnant and were docked forty pounds each when sold on the market; that they were sold at less price per cwt. than that named; that plaintiffs settled with said Rumans and paid him the difference in price received and that which defendant represented they would bring, and also paid him for the loss sustained by reason of said seven hogs having been docked. They ask judgment for the amount of the sum paid said Rumans on said settlement.
The plaintiffs introduced evidence tending to show the following state of facts. That on the day stated they purchased from defendant a carload of hogs at the price named; that plaintiffs had never seen the hogs at the time of their purchase; that defendant said they would be nice, straight hogs, none of which would be subject to “dock;” that they would be good enough to bring within the price already mentioned; that if they
A witness named Snell, who was acting as agent for plaintiffs, testified that before he paid for the hogs defendant discussed the question as to how many of them would be subject to “dock;” that they could not agree about the matter; and that defendant agreed to let the hogs be shipped and to settle the “dock” as reported froim the market. Snell further testified that before he paid for the hogs defendant asked him if Eumans was going to Chicago, and that he told him such was the intention and “if that has anything to do with the settlement, say so now, if not, I will settle for the hogs in full, and you can pay back the amount of the dock and he accepted the settlement.”
Upon the showing of plaintiffs the court directed the jury to return a verdict for uofOT!r1fint. The plaintiffs contend that the action of the court was error. In our opinion, plaintiffs made out a prima facie case of warranty. The defendant’s representations were that the hogs should be of a certain kind and quality and that they should be as represented. “A warranty, in a sale of personal property, is a statement or representation of fact made by the vendor as to the character or quality of the article sold or the title thereto, whereby the vendor promises that the thing is, or shall be, as represented. It is otherwise defined as a statement of
But defendant contends that the contract of sale being executory and personal, was not assignable. In Lansden v. McCarthy, 45 Mo. 106, was a case where the defendant entered into a written contract with plaintiff’s assignors, by which he agreed to furnish thelm at their hotel all the fresh beef, pork and mutton that they might order or require for consumption for one year at ten cents per pound, etc. The plaintiffs became the proprietors of the hotel and took an assignment of the contract. Defendants refused to supply them with the meats mentioned. The court held that he was not bound to do so, as the contract was not assignable without the consent and concurrence of defendant, for the reason that it involved a matter of trust and confidence in the plaintiff’s assignors. That is to say, defendant may have had a personal confidence in the assignors that he did not have in the plaintiffs. In Hardy Implement Co. v. Iron Works, 129 Mo. 222, the Missouri decisions were reviewed and the holding in Lansden v. McCarthy, was expressly approved. If the case at bar be construed to be one of personal confidence and trust, still the plaintiffs had the right to have their case submitted to the jury under the rule in the above cases for the reason that the evidence went to show that the hogs were sold by plaintiffs to Rumans under the same conditions and stipulations governing the sale to plaintiffs and that defendant consented to and concurred in such sale and received the money for the hogs from plaintiff’s agent.
It is necessary, however, to call attention to defendant’s side of the case. It is insisted that the contract contemplated that the hogs should be shipped and sold on the St. Louis (market. There was evidence to the effect that hogs in the vicinity of Sturgeon shipped to be sold on the market were generally understood to be
Defendant’s version of the contract is somewhat different from that of plaintiffs, viz.: his statement was that he said to plaintiffs, “You take the hogs and ship them and I will stand behind them.” Although the evidence tends to show that defendant’s contract with plaintiffs was one of personal trust and confidence, yet under the authorities referred to, it was a matter which he could waive, and, as stated, the evidence tends to show that he did waive that matter.
It may be assumed that the contract, properly interpreted, provided that the hogs were to be shipped in the month of September. They were not shipped until the second day of October. If the market for such quality of hogs declined in the meantime the delay was to defendant’s prejudice and he ought not to be held to a strict performance of the contract without he waived that matter. There is some evidence that he did waive the time of shipment which was a matter for the jury.
And if defendant’s version of the contract be true, that plaintiff’s were to take the hogs to the market and sell them, his consent that plaintiffs’ vendee might take the hogs on the same terms, imposed a like obligation upon Rumans also. Perhaps it might be immaterial as a matter of fact whether the purchaser accompanied the hogs to market and superintended their sale there. It is not a matter of which we can take judicial cognizance, yet it was a matter of contract, and defendant had a right to stand on his contract. The evidence is not clear that defendant was present and consented to the delay in the shipment of the hogs to the market on the
We think the case was one for the jury. ■ Reversed and remanded.