53 Mo. App. 418 | Mo. Ct. App. | 1893
— This was a suit originating before a .justice of the peace. The plaintiff’s statement alleged that he sold defendants eighty-one head of fat steers for $6,420.75, and that defendants afterwards shipped eighty head of said steers to Chicago and received "therefor $6,225.75; that defendants left on plaintiff’s
The evidence tended to show about this state of facts: The plaintiff sold the defendants eighty-one head of beef steers for $6,420.75. One of them was overlooked in the delivery and so left in plaintiff’s pasture. The eighty head that was received were shipped to the Chicago market. Before they were shipped the defendant paid, the purchase price. The plaintiff after discovering the undelivered steer in his pasture asked defendant Montague what he would take for him, and the latter replied he would take the average price of the other cattle. This steer averaged with the others in value.
It seems that both plaintiff and the defendant Montague expressed the opinion that there would be a loss sustained by defendants on the cattle. The plaintiff being of the opinion that it would be less than the defendant Montague thought it would be. After so expressing themselves a dispatch was received by defendant Montague from the other defendant Hudson to the effect that the steers had “sold for $5.65 per hundred-weight, and one short.” It was proposed that if the plaintiff would pay defendants the amount
At the time the plaintiff desired to repurchase the steer which defendants had left in his pasture, it was conceded all around that the defendants would sustain a loss on the cattle they had shipped to Chicago, but both parties were then ignorant of the exact amount of "the loss. The contract entered into in respect to thp steer still remaining in plaintiff’s pasture was as we understand the evidence no more than this: That the plaintiff would give and the defendant would take for said steer a price and sum equal to the amount of the unascertained loss which the defendants had sustained •on the steers that they had shipped. The loss which plaintiff was to pay was the difference between the buying and selling price of the steers shipped. This did not include the steer which defendants still owned in plaintiff’s pasture. The steers shipped cost $6,420.75, less $79.26, the average cost of the. one in the pasture, or $6,341.49. They brought in Chicago $6,225.74. Subtracting the latter of these sums from the former and there remains $115.74, which was the .amount of the loss and the consideration for the sale and purchase of the steer. The contract was based upon a sufficient consideration and was no more a .gaming contract than if A were tó sell and deliver to B his crop of wheat, for such price per bushel as that of
The mistake of the parties in the amount of the loss is obvious. It does not appear from the evidence that the defendant Hudson knew the exact terms of the contract entered into between his partner Montague and the plaintiff. He it seems, in making his calculation of the loss, proceeded upon the erroneous notion that the amount received for the steers shipped should be deducted from the amount paid for the entire number purchased, and that the difference would be the loss which plaintiff was to pay as the price of the unsold steer. Such was not the contract as disclosed by the evidence. The defendant Hudson was mistaken in his assumption of the terms of the contract. The result of this mistake was that he reported to his partner Montague that the amount of the loss was $205. The plaintiff supposing this to be the correct amount paid it. Both plaintiff and defendant Montague believed Hudson had reported the correct amount. Neither of them prior to the payment by plaintiff had calculated the amount of the loss. Plaintiff later on discovered the mistake which defendant Hudson had made and sought to have it rectified but in which he failed.
It follows from these observations that the instructions requested by defendants, which asserted views of the law contrary to those which we have already expressed as applicable to the case were properly refused.