185 Mo. App. 599 | Mo. Ct. App. | 1915
This is an action to recover damages resulting from the alleged breach by the vendor of a contract for the sale and delivery of 2000 bushels, of potatoes. At the close of the evidence of plaintiffs the court directed a verdict for defendant, plaintiffs took an involuntary nonsuit, with leave to move to set the same aside, and after their motion to set it aside was overruled, brought the case to this court by appeal.
Eespondent has filed no statement and brief, and the case is before us on the abstract of the record and statement and brief of appellants, from which it appears that the demurrer to the evidence was sustained mainly upon the ground that the petition alleges a joint sale of 2000 bushels of potatoes to plaintiffs, while the evidence shows a separate sale to each plaintiff of 1000 bushels. Further it appears that the court regarded as serious the question of the sufficiency of the written memorandum of the sale under the Statute of Frauds.
On October 23,1911, defendant, a wholesale dealer in produce at Sedalia, signed and delivered to plaintiffs, who were retail dealers at Green Eidge, Missouri, the following written memorandum of the sale in question :
*602 “Sedalia, Mo., 10-23-1911.
“M W. T. Brimm,
Green Ridge.
John Alexander,
Wholesale Fruits and Produce.
542 East Fifth St. Bell Telephone 1379.
I hereby bill to Brim & Wadleigh 2000 Bn.
Potato at 69 ct. F. O. B. Green Ridge.
To be rurals and not too large like what we looked at.
(Signed.) John Alexander.”
Following the delivery of this memorandum there was a sharp and continuing advance in the market price of potatoes, and after a reasonable time for delivery had expired defendant refused to perform the contract and plaintiffs were compelled to buy 2000 bushels from another dealer at the advanced market price.
Plaintiffs were not in partnership but were the respective proprietors of separate businesses in Green Ridge and each had agreed with the other to take and pay for one-half of the pototoes as they were delivered. On cross-examination the plaintiff Wadleigh testified that he was to have one thousand bushels and Brim an equal quantity and that he' “would owe.Mr. Alexander for a thousand bushels” and “Brim would owe Mr. Alexander for a thousand bushels.” But his testimony, as a whole, shows, we think, that he was speaking of the agreement he had with Brim and did not mean to say that their contract with Alexander embraced the provisions of that agreement. The court, however, put that construction on his testimony, and after intimating on the hearing of the demurrer to the evidence that the evidence disproved the pleaded cause which was founded on a joint contract, permitted plaintiff Brim to be recalled to the stand but refused to allow him to testify to the absence of an agreement with Alexander for separate sales to the respective
But the vital error which induced the court to sustain the demurrer to the evidence was not the one just discussed. The cause of action asserted by plaintiffs is founded on a written contract which the proof
The evidence of plaintiffs was sufficient to take the case to the jury and the court erred in directing a verdict for defendant. The judgment is reversed and the cause remanded.