161 Mo. App. 640 | Mo. Ct. App. | 1911
This is an action to recover the contract price or value of goods sold and delivered by plaintiff to defendants. In the first count of the petition a contract of sale is alleged and the demand
Plaintiff was a manufacturer of straw paper in Dayton, Ohio, and defendants were wholesale liquor dealers in Kansas City, doing what is called a mail order business in the transaction of which they sold liquor in small quantities and shipped it by express and as freight to consumers in the territory tributary to Kansas City. In such shipments the bottles were packed in boxes and each bottle was enclosed in a corrugated straw paper wrapper to prevent breakage in transit. The corrugations of the wrappers served as cushions between the bottles and the wrappers were made of rye, wheat and oats straw. Those made of rye straw were lighter but stronger than those made of either wheat or oats straw. Corrugated pads also were used as cushions in the tops and bottoms of cases. A carload of wrappers, pads and advertising labels pasted on the wrappers sold arid delivered by plaintiff to defendants in July, 1905, is the subject of the controversy. The goods were sold f. o. b. cars at Kansas City and were received by defendants who paid the freight charges for the account of plaintiff, hauled the goods to their places of business and immediately began using them. Under date of July 23, 1906, which was two days after the goods were received from the railroad company, but the same day the use of the goods began, defendants wrote plaintiff:
*644 “We just received your car of wrappers, and find that they were printed the wrong way on the manilla sheet. Por a left-handed person the wrappers are printed correctly, but, unfortunately, all of our employees are right handed. This mistake makes it not only inconvenient in wrapping’ bottles, but necessitates a loss of time, which amounts to considerable on a car lot. In wrapping bottles with wrappers printed, in the manner you have them, it is necessary for anyone to hold the bottles by the base instead of the neck. We believe we are entitled to an allowance on account of the mistake on your part.”
Plaintiff replied to this letter immediately, insisting that the manilla pasters on which the advertisement was printed were properly attached to the wrappers and requesting that samples of the wrappers defendants claimed were wrong be forwarded for inspection. Defendants did not press this claim for an allowance any further but on July 26> telegraphed plaintiff: “Express immediately cut used on our wrappers and oblig'e.” Defendants had' sent plaintiff a wood cut of a distillery for use in printing’ the manilla labels and the telegram referred to that wood cut. On the same day (July 26th) defendants sent plaintiff the following letter:
“We find upon comparing the wrappers you just sent us with those we received in previous shipment, that you have sent us a much infeiior wrapper. We cannot use the wrappers. The corrugations are entirely too light and soft and will not protect the bottles in transit. To use the wrappers would not only mean a loss of goods, but a loss of customers as well.
We have weighed the wrappers you just sent us and those shipped in previous lot, and we find a considerable difference in weight. Owing to these facts we will not use the shipment you forwarded, and will-hold the entire lot subject to your orders.
*645 We are not looking for an allowance in this matter, and could not afford to accept them even though they were given to us free. We cannot afford to jeopardize our trade in using them. Please give us disposition by wire, as we have no room to store these wrappers. Unless we hear from you quickly we shall store them at your expense.
Under separate cover we are mailing you sample of wrappers for your inspection.”
July 28th plaintiff wrote defendants a long letter in refutation of the ground on which defendants based their right to rescind the contract. When plaintiff offered this letter in evidence counsel for defendants, in effect, conceded its relevancy and admissibility but objected to a part of the letter as “incompetent and immaterial” and asked that the objectionable part be withheld from the jury. The part objected to is as follows: “We have been in business a long time and have never had a complaint like this before and have been furnishing these to such people as C. W. Shawhan, IT. Rosenberger & Co., Reefer’s Creen Mountain Distillery, R. Eisen & Co., and in fact, all the large jobbers. Just before your car left we shipped a car to A/Rosenberger of your city, made out of the same material and we had no complaint from him. His goods were made at the same time yours were, run from the same machine and out of the same stock.”
The court overruled the objection and allowed plaintiff to read the entire letter to the jury. The instructions afterward requested by defendants did not contain a direction to the jury to disregard the irrelevant matter. Defendants used none of the goods after July 26th, but held them subject to the order of plaintiff, until they were destroyed by a fire that occurred in defendant’s business house. There is evidence introduced by defendants tending to show that the goods were so defective in the manner claimed by them that they were worthless for the purposes of
Answering this letter plaintiff said in part: “In reference to what you claim that the original sample we sent you of your wrappers, was all rye straw. This may be so, but as the sample was taken from some goods that we have had in stock for quite awhile, is the only way we can account for it.
We regret that we cannot accept your order for a carload of rye straw wrappers, for reasons stated above. However, if you wish us to enter your order for one ear of Corrugated Wrappers to be made out of such stock as we have, we will accept same at the old price.
Defendants replied directing plaintiff “to fill the order we mailed you recently using stock that you have on hand but to include as many of the rye straw wrappers as possible.” Plaintiff accepted this order saying, “we are afraid that there will not be many rye straw wrappers in this car as we have very little of that class of paper on hand. However as requested, we will give you all that we possibly can.”
Defendants complain of instruction numbered two given at the request of plaintiff in which the jury were directed to return a verdict for plaintiff on the first count if they found “that the carload of bottle wrappers and pads received from plaintiff by defendants in Kansas City on the 20th day of July, 1905, were, when received by them, equal in quality to other bottle wrappers and pads delivered by plaintiff prior to the delivery of this carload and accepted and paid for by defendants.”
It is the contention of defendants that the samples originally sent to defendants by plaintiff and not the goods contained in the first carload purchased and paid for by defendants afforded the standard by which
Defendants object to the third instruction given at the request of plaintiff which told the jury to give plaintiff a verdict for the reasonable value of the goods if they believed from the evidence “that the carload of bottle wrappers and pads referred to in plaintiff’s petition when received by defendants in Kansas City Were not of the quality described in instruction No. 2, yet, if you believe from the evidence that said goods were not wholly worthless but had some value, and that defendants after receiving said goods examined them and accepted them or kept them an unreasonable length of time considering all the circumstances shown by the evidence before notifying plaintiff of their refusal to accept them,” etc.
Other objections are urged to instructions given by the. Court but they are without merit and we turn to objections urged against rulings on matters of evidence.
Defendants argue that the court erred in refusing to strike out the paragraph we quoted from plaintiff’s letter of July 28, 1905. We may concede, for argument, that the statements in that paragraph were self-serving and related to collateral facts not material to the issues of the present case and that the court should have withheld them from the jury but inasmuch as
Paraphrasing an excerpt from the opinion in the last case cited the rule of practice is well settled that where a document is proper evidence of a fact it will be admitted and the opposite party is left to his motion to exclude the irrelevant matter from the consideration of the jury. Finally defendants object to the cross-examination counsel for jalaintiff, over the objections of defendant, were permitted to give one of the defendants. In the introduction of its own evidence, plaintiff attempted to prove that defendants were actuated by a sinister motive in refusing to receive the goods and not by any consideration of inferiority in the goods themselves. In the advertising matter printed on the manilla pasters appeared the picture of a large distillery in Baltimore, Maryland, and the false statement that it was owned and operated by defendants. Shortly after refusing to accept the shipment defendants placed another order for wrappers and pads with another manufacturer and altered its advertisement to correct the false representation. Plaintiff attempted to prove these facts and also the facts that about the time of these occurrences a fraud order had been issued against another liquor dealer by. the post-office department on the ground of a similar misrepresentation, and the object of plaintiff was to convincé the jury that the fear inspired in defendants that a similar fraud order would be issued against them caused them to seek a pretext for throwing the goods back on the plaintiff. The court excluded all evidence of this character but allowed plaintiff to re
The rule relating to collateral' facts thus is stated in Greenleaf on Evidence (13 Ed.), par. 52: “This rule excludes all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute; and the reason is that such evidence tends to draw away- the minds of the jurors from the point in issue and to excite, prejudice and mislead them; and moreover the adverse party having had no notice of such a course of evidence, is not prepared to rebut it. ’ ’
We discussed and applied this rule in the recent cases of Council v. Railroad, 123 Mo. App. l. c. 442, and Horr v. Railway, 156 Mo. App. 651, 137 S. W. 1010. But the judicial and text-writers, especially the modern writers (see in this connection Wigmore on Evidence, vol. 1, secs. 38, 39) in effect divide what is termed collateral facts into two classes, i. e. first, those from which no reasonable inference may be drawn in respect of the truth or falsity of a disputed and elemental fact of the pleaded cause and, second, those from which such inference may be drawn. The first class is treated as extrinsic to the true sphere of the legitimate issues formed by the pleadings and, therefore, as irrelevant, but the second, though outside the body of the true issues, nevertheless (to borrow a figure of speech) is within its penumbra and is as much a part of the case as the atmosphere is a part of the earth.
“Pacts or circumstances, upon which a reasonable inference may be founded as to the truth or falsity of a disputed fact which is elemental to the cause of action are not extrinsic but are germane to the issue.” [Council v. Railroad, supra.]
The court kept well within the principles just stated in refusing to receive direct proof of the facts
We find no prejudicial error in the record and, accordingly affirm the judgment.