78 Mo. 73 | Mo. | 1883
The petition charges that, in May, 1877, plaintiff contracted with defendant for the sale of, and sold to defendant, sixty merchantable fat hogs, to be delivered in Queen City, Schuyler county, on any day from the 20th day qf November next thereafter to the 10th day of December, inclusive, at the option of the defendant — he to notify plaintiff on which of said days, from the 20th day of November to the 10th day of December, to deliver said hogs —said hogs to average not less than 250 pounds, for which defendant agreed to pay plaintiff five cents per pound on. delivery as aforesaid; and plaintiff says that defendant, then and there paid plaintiff' $5 on said contract, as earnest money and in part payment, which was accepted by plaintiff accordingly; that plaintiff at all times during said period between the 20th day of November and the 10th day of December, inclusive, was ready and willing to deliver said hogs to defendant pursuant to said contract, and during; said period plaintiff requested defendant to inform him on what day he would receive said hogs, but defendant refused to name any day for such delivery, and failed to notify plaintiff when to deliver the same; .and that, during said period, to-wit, on the 10th day of December, 1877, during usual business hours, and before sunset of that day, plaintiff tendered to defendant and offered to deliver to him, in
The second count of said petition, in all respects, set out the same transaction, or cause of action, except that the second count contained the following averment, the first part of which is not included in the first count: “ That by the custom of the country in contracts for the sale and future delivery of hogs and other live stock, the 10th day of December, 1877, was included as one of the days for the delivery of said hogs, as' defendant well knew, and as considered at the time of making said contract, and in fact, according to the understanding and intention of the plaintiff and defendant said day was so included.”
The answer of defendant is : 1st, A general denial; 2nd, Then charges that in May, 1877, plaintiff sold and agreed to deliver to defendant, and defendant purchased and agreed to receive and pay for one car load, of smooth, straight, merchantable fat hogs, to average not less than 250 pounds, for the price of five cents per pound, to be paid for on delivery at Queen City at any time between the 20th day of November and the 10th day of December following, at the option of plaintiff, and defendant then paid plaintiff $5 on the contract to bind the bargain, which was received accordingly. And defendant says 'that he was at all times, between the 20th day of November and the 10th day of December, ready and willing to receive and pay for said hogs, but that plaintiff at no time between said days delivered, or tendered the delivery of said hogs to defendant, but failed and neglected so to do, to the damage of
The reply to this answer was a general denial of all of said new matter so stated.
for the plaintiff, and judgment was rendered accordingly, from which the defendant, after an unsuccessful motion for a new trial, appealed to this court. There was a trial before a jury, who found the issues
It appears from the bill of exceptions that at the trial the plaintiff offered evidence tending to sustain the issues on his side, and that the defendant also offered evidence tending to sustain the issues on his part, and also obj ected to evidence of plaintiff to prove the custom in that locality set up in the second count of the petition. At the close of the testimony, the court, over the objection of the defendant, gave six or seven instructions for plaintiff, none of which, however, are preserved in the record, the clerk certifying that they could not be found, and had been lost by counsel. The court, also, refused four or five instructions asked by the defendant, which it is unnecessary here to insert, in the absence of those given for the plaintiff.
The defendant claims a reversal: 1st, On the ground of error in giving and refusing said instructions ; 2nd, On the ground of error in receiving evidence offered by plaintiff to establish the custom, in that locality, in reference to contracts of the description of the one in question.
Eor these reasons the judgment of the circuit court is affirmed.