Brockman Commission Co. v. Kilbourne, 111 Mo. App. 542

Brockman Commission Co. v. Kilbourne

111 Mo. App. 542 | Mo. Ct. App. | 1905

BLAND, P. J.

(after stating the facts). — The contract was an Illinois contract and our Statute of Frauds pleaded by defendant is inapplicable to the transaction, and it is not contended by appellant that the contract, as made, is within the statute. His contention is that no completed contract was entered into. We do not think this contention finds support in the evidence. *548Brockman’s testimony is that be was shown a sample of No. 2 dairy butter and that it was agreed between him, representing’ the plaintiff, and defendant, representing bis firm, that the firm would sell and the plaintiff would buy two hundred tubs of No. 2 dairy butter, corresponding to sample shown, at eight and one-half cents a pound, the tubs to contain sixty pounds each, the butter to be delivered within three or four weeks, after being inspected by plaintiff before shipment. The price, the quantity and the grade were all agreed to. The exact time of the delivery was not fiixed but was to be within three or four weeks, or within a reasonable time. Nothing was said about when payment should be made; when this is the case the presumption is that the payment is to be made in cash on delivery, so that all the terms of the sale are fixed and certain, except as to the exact date of delivery and that is fixed with sufficient certainty to show that it was to be made within a reasonable time. We think, therefore, the evidence clearly shows that defendant’s firm agreed to sell, and plaintiff agreed to buy, two hundred sixty-pound tubs of No. 2 dairy butter, plaintiff to pay eight and one-half cents a pound on delivery, the butter to correspond with the sample shown and to be delivered within a reasonable time. This embraces all the essential elements of a valid contract of sale, and defendant’s firm was bound to make or tender delivery of butter corresponding to sample shown Brockman within three or four weeks. Brockman’s evidence is that the butter defendant offered him did not correspond with the sample, in fact, the defendant had only thirty sixty-pound tubs of butter when it offered to deliver the butter or offered it to him for inspection. On the other hand, defendant’s evidence is that the firm had two hundred sixty-pound tubs of No. 2 dairy butter on hand that corresponded with the sample but plaintiff refused to accept the same, so, it appears by the evidence of both parties that the transaction was treated as a sale of two hundred sixty-pound tubs of No. 2 dairy butter. *549In other words, the defendant’s evidence shows that the contract was made and that he offered to fill the contract by submitting to Brockman for inspection the whole number of tubs agreed to be sold, containing butter of the grade mentioned in the contract and corresponding with the sample shown to Brockman at the time the contract was made. The issue, therefore, was not whether or not there was a contract but whether or not the defendant’s firm complied with, or was in a condition to and offered to comply with the contract. Defendant also offered evidence that at the time Brockman declined to receive the butter for the alleged reason that it did not correspond to sample, it was then and there agreed that the contract of sale should be cancelled. Brock-man denied this and stated that he then and there notified defendant that he would hold his firm to the contract.

Brockman testified that, in June and July, 1897, No. 2 dairy butter was worth from twelve to twelve and one-half cents per pound. Defendant’s evidence is that during those months this grade of butter was worth from eight to eight and one-half cents per pound. If worth no more than eight or eight and one-half cents per pound during the period in which delivery might have been made under the terms of the contract, the plaintiff suffered no substantial damage and its recovery on the first count should have been for nominal damages only, but the contradiction in the evidence as to the market value during the delivery period raised an issue of facts for the jury. This issue and all the other issues of fact, the jury found for plaintiff on the evidence of Brockman alone and against the defendant’s evidence, which might seem to outweigh that of Brockman for the reason it was corroborated by other witnesses. But it is not in our province to weigh the evidence. We are bound to defer to the finding of the jury, if there is substantial evidence to support it. Brockman’s evidence made out a clear prima facie case for the plaintiff ' on *550the merits and showed that the plaintiff suffered substantial damages, and it is no concern of ours how strong the countervailing oral evidence was. It is the duty of trial court to supervise the verdicts of juries and set them aside when contrary to the evidence; and the appeal to set aside the finding of the jury, made to this court by defendant’s counsel, should have been made to the circuit court. Insurmountable legal barriers stand between us and the right to set aside the verdict of a jury on the ground that it is against the weight of the evidence, therefore, if the instructions are not erroneous and no prejudicial error was committed on the trial, the judgment should be affirmed.

Defendant assigns as error the giving of -the following instructions for plaintiff:

“1. If you believe from the evidence that at the city of Chicago, in the State of Illinois, in the month of May or June, 1897, the firm of C. H. Weaver & Company entered into a contract with the plaintiff whereby it promised to sell and deliver to the plaintiff in their place of business in the said city of Chicago, within a reasonable time thereafter, at the price of eight and one-half cents per pound, twelve thousand pounds of number two dairy butter, put up in two hundred sixty-pound tubs, and to be of the quality of the samples then exhibited to the plaintiff’s president, and that he was to be the judge to determine whether the goods offered in fulfillment of the contract were of the grade and quality of the said samples, and if you further believe the goods offered were not of the grade and quality contracted for or were not put up in sixty-pound tubs, or were rejected by the plaintiff’s president for either of these causes, you will find a verdict in favor of the plaintiff on the first count of the petition, unless you find from the evidence that at or after the time of the rejection of the goods by the plaintiff’s president, if you so find they were rejected, he agreed to cancel and'' set aside the said contract and waive and discharge all damages arising *551from the non-fulfillment of the contract, if any, which agreement to be binding on the plaintiff must have been supported by some consideration of value moving from the defendant to the plaintiff, and they are further instructed that an agreement not to deliver, on the one side, and an agreement not to receive, on the other, would be sufficient consideration, if they so find, to support an agreement to cancel said contract.

“2. Before you can find a verdict in favor of the defendant on the first count on the ground that the parties to the contract sued on by the plaintiff in that count was, for a valuable consideration, rescinded as explained in another instruction, you must find that the defendant has maintained that defense by the greater weight of credible evidence in the case, for that being an affirmative defense, the burden is on him to satisfy you of the truthfulness thereof by the greater weight of credible evidence.”

Defendant has pointed out no special error in instruction 1, and we are unable to preceive wherein it is erroneous. His objection to the second instruction is that it required him to prove his defense to the first count “to the satisfaction of the jury.” This phrase is not in the instruction. The instruction declares the law to be that the defense referred to is an affirmative one and it devolved on defendant to prove it by a preponderance of the evidence. This was certainly a correct declaration of law.

It was shown on the trial that before the beginning of the suit defendant made overtures to Brockman to settle the controversy. Plaintiff’s attorney was unseemly persistent to get the proposition of compromise before the jury, but it was not permitted to go to the jury as evidence in the case. While we must condemn the effort of plaintiff’s counsel to cross-examine defendant in respect to his overtures to Brockman to compromise, we are not prepared to say, in opposition to the ruling of *552tbe learned circuit judge, that defendant was prejudiced by tbe action of plaintiff’s attorney.

Discovering no reversible error in tbe record, tbe judgment is affirmed.

All concur.