86 Mo. App. 228 | Mo. Ct. App. | 1900
Plaintiff sues as receiver of the Elyton Company, an Alabama corporation, for the price of certain machinery and scrap iron sold to defendant, a Missouri corporation, under a contract accepted by it, which is, to-wit:
“Birmingham, Ala., April!, 1898.
“Cal. Hirsch and Sons Iron & Rail Co.:
“Confirming-our verbal agreement with your Mr. M. A. Hirsch, we agree to sell you all of the machinery and scrap iron as seen by him at the old Birmingham Railway and Supply Co.’s Mills at Avondale, railroad weights to govern here with the understanding that cars are to be weighed empty. Terms to be B. of L. attached to sight draft. Movement to be started within two weeks and completed promptly. The material to be loaded as per Cal. Hirsch & Sons’ instructions given to Mr. Bunch, with the understanding that in loading the machinery that it is not to be broken, this however does not cover the scrap iron. Price to be paid is $5 per gross ton 2210 pounds, f. o. b. cars Birmingham.”
All of the material referred to in the above contract was delivered and paid for, except five car loads, of which two were received by defendant and the remaining three were tendered to it upon payment of a draft for the price of the
It is insisted the court erred in not sustaining the demurrer of appellant to the petition for want of legal capacity in respondent to maintain the action. This demurrer was overruled, whereupon appellant answered over admitting certain allegations of the petition, denying others, and setting up a counterclaim for damages sustained by breakage of the machinery in the process of loading it on the cars. This subsequent pleading was a waiver of the demurrer for incapacity of plaintiff .to sue, hence that issue is not before us for review.
It is next insisted that no authority in the Alabama court to appoint the plaintiff as receiver was shown. The petition alleged that such appointment was made by decree of a court of general jurisdiction. This allegation is'nowhere denied in the answer, hence it was admitted.
Appellant also complains of the refusal of two declarations of law requested by it. . This exception can not be sustained under the facts in the record. One of the said declarations of law was merely a demurrer to the evidence, and the other was to the effect that the court must find for appellant on its counterclaim. Obviously each of them only presented particular probative tendencies of the facts adduced on the trial. As the entire evidence was susceptible of contrary legal inferences, the court, sitting as a trier of the facts, was privileged to find as it saw fit, and was not bound to accept the conclusions pointed at by the evidence favoring appellant’s contention and disregard that of an opposite im
There are other minor points alluded to in appellant’s brief, in support of which the so-called abstract filed herein simply refers the court to pages of the transcript, a volumin'ous written record. This method is not a compliance with rule 16 of this court, and subjects it to the unnecessary labor which it was the design of that rule to obviate. However, an examination of the transcript on these points does not disclose any reversible error in the rulings of the trial court. Its judgment is therefore affirmed.
