136 Mo. App. 712 | Mo. Ct. App. | 1909
This suit is based upon contract. The case was here once before and is reported in 125 Mo. App. 703. It was reversed and on trial anew plaintiffs recovered judgment and defendants appealed. For the purposes of this appeal, it becomes necessary, in a general way, to again restate the case.
The plaintiffs’ evidence tended to substantiate the statement of their contract, as pleaded; that they resold
A witness by the name of Snell, who was acting for plaintiffs, testified that, before he paid for the hogs, defendant discussed the question as to how many of them would be subject to “doek”; 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 from the market. Snell further testified that, before he paid for the hogs, defendant asked him if Rumans was going to Chicago, and that he told him such was his intention, and asked him “if that had 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.”
The defendant’s version of the contract was somewhat different from that of the plaintiffs. His statements was that he said to plaintiffs, “You take the hogs and ship them and I will stand behind you.”
The cause, on the former appeal, was reversed and remanded for the reason that the trial court sustained a demurrer to the plaintiffs’ evidence. The opinion, however, suggested that, “The evidence is not clear that defendant was present and consented to a delay in the shipment of the hogs to market on the 2nd day of October.” It was held that there was evidence that the contract contemplated that the hogs were to be shipped during the month of September. The court submitted the question to the jury in the following instruction: “The court instructs the jury that, if you believe from the evidence that it was agreed between plaintiff and defendant that the hogs should be delivered to plaintiffs
Upon a review of the evidence, we find that it was not admitted by plaintiffs that the hogs were to be placed and sold on the market during the month of September. The plaintiff Afflick, who testified as to -the making of the contract, stated that no time was set for that purpose. Then, it was a question whether the hogs were placed on the market within a reasonable time after delivery.
Therefore, the instruction in some respects'did not cover that issue in the case, but it did -cover the issue whether it was or was not agreed that the hogs should be sold on the September market. It being a question of fact and not of law, we are not called upon to say whether there was any waiver as to that matter. There was, evidence sufficient to authorize a finding by the jury that defendant waived the right to have said hogs shipped to the Chicago market instead of the St. Louis market, and there was sufficient evidence to authorize a finding that defendant waived the right to have the plaintiffs in person, or Rumans, their assignee, to accompany the stock to market. All these issues were submitted to the jury by proper instructions. It is true, some of the instructions asked by defendant were not given in the language as requested, but were amended by the court; however, we believe the amendments made by the court were such as ought to have been made and that defendant obtained from the hands of the court the most liberal treatment in that respect.
Finally, it is contended that there is no competent evidence to show that plaintiffs were damaged. A witness by the name of Thompson testified that he sold
Many other questions are raised by appellant, but they are so extremely technical that we do not consider it necessary to discuss them, as the judgment, in our opinion, is for the right party.
Affirmed.