76 Mo. App. 375 | Mo. Ct. App. | 1898
Plaintiff sues for a balance due on two car loads of wheat sold to defendant upon a contract to deliver to a carrier at East St. Louis, billed to Red Bud, Illinois, to be paid for according to weights taken by defendant at point of destination. Plaintiff had judgment in the justice’s court. On appeal to the circuit court the case was tried by the court without a jury. All of plaintiff’s instructions were given, and a verdict and judgment rendered in defendant’s favor. Plaintiff appealed to this court.
The first error assigned is, that the finding should have been for the plaintiff. It is quite true that the evidence adduced by plaintiff tended to prove that all the wheat charged for was contained in the cars when they were delivered according to contract on board the connecting carrier at East St. Louis, but the inferences naturally deducible from defendant’s evidence tended to negative the effect of the testimony for plaintiff. This conflict in the evidence prevents any review of the finding of the trier of the fact. Moreover the burden of proof was upon plaintiff in the first instance, and the express contract was, that the price to be paid should be determined by the weight of the grain as ascertained by defendant, and the testimony for defendant was undisputed that the weight taken by him showed a shortage answering to the amount for which this action was instituted. Plaintiff having thus left to defendant the practical ascertainment of the price of the product sold, is in no position to complain of a finding upon substantial evidence that all the grain
The second assignment of error relates to the findings of fact made by the court. Under section 2135 of the revision of 1889, it was clearly the duty of the trial court, upon a request for such finding, to state the constitutive facts in issue, and to state also separately the conclusions of law thereon, in order that proper exceptions might be taken. Cochran v. Thomas, 131 Mo. loe. cit. 268. The finding in this case is not clear, explicit or full on the points in issue, but a consideration of it as a whole iu connection with the inferences fairly arising from the facts stated, discloses a sufficient basis to support the judgment. The findings do recite the terms of the contract of sale; the fact of the delivery of the goods, and the dispute as to the contents of two ears only, and inferentially that there was a shortage in the contents of these cars at the point of delivery in East St. Louis. We can not therefore hold that the findings do not recite facts essential to support the judgment. It will therefore be affirmed.