90 Minn. 286 | Minn. | 1903
Action to recover the contract price of a carload of bananas shipped to defendants at St. Paul from Mobile. Affirmative damages were, also sought by defendants for the alleged failure of plaintiff to fulfil an agreement to make good defects on previous consignments. The.
The complaint demands a recovery for the purchase price of one car of fruit shipped from Mobile in August, 1901, alleging that it was delivered to defendants at that place at their risk. In the answer defendants claim that the place of delivery was St. Paul, and that the sale was dependent on the arrival of the bananas at the point of delivery in green and merchantable condition; that the fruit did not comply with the contract in this respect, but was badly decayed, therefore it was refused when it reached its destination. A counterclaim was interposed to recover money already paid plaintiff on three other carloads of bananas which had been forwarded to defendants — two from New Orleans and one from Mobile — during the previous month of June, which were not in good marketable condition when shipped or on arrival; that, according to an agreement then made between the parties, defendants should take the fruit in each case, pay the purchase price therefor, and plaintiff would thereafter refund the difference between the amount paid, with freight, and the sum defendants should realize by sale thereof, which was assented to and acted upon by the defendants, the amount of the difference being set forth. The reply states that all the cars were delivered at the point of shipment, but denies the agreement alleged in the counterclaim; also asserts that the fruit was of good quality when shipped.
Plaintiff insists that the evidence conclusively shows that, under the agreement actually made, the several carloads of bananas shipped from the Southern points where they were received from Central America were in good condition; that, while messengers were sent with the fruit, the points of delivery were the places of shipment where the three cars were received by the defendants at their risk, “free on board” the cars; that they accepted the same and paid for those received; also, that none of them were accepted upon the conditions set forth in the counterclaim.
While the testimony very strongly tends to support plaintiff’s claim in these respects, there was likewise evidence reasonably tending to establish the facts upon which defendants sought to support their justification in refusing to accept the August shipment, on which the suit
A careful examination of all the evidence has led us to the conclusion, with reference to the issues thus contested, that except as to one carload included in the counterclaim which was under the rulings of the court held to have been accepted, the issuable questions presented.by the .pleadings were for the jury.
In two assignments plaintiff challenges the allowance of certain expert or opinion evidence, and has presented a somewhat extended argument to demonstrate that it was prejudiced thereby. We have examined these alleged errors with much care, and do not consider it necessary to follow the contention of plaintiff’s counsel in this respect further than to say that we deem the questions thus raised require no further notice than upon the consideration whether testimony of witnesses at St. Paul, who knew nothing of the condition of the fruit when loaded, was proper to show, from its appearance on arrival of the same at that place, that it was not in proper and marketable condition when put on the cars. Several of plaintiff’s witnesses whose testimony was taken by deposition state positively that the fruit was in good condition when shipped; the messengers’ evidence was given of its condition during transit; and a witness properly qualified was allowed, under objection, to state the effect of putting a bunch of defective bananas in a car with good ones, and also whether, in his opinion, based upon the appearance of the fruit upon arrival at its destination, it was in proper condition when loaded. While certain other facts might have been shown upon which to base his answers, we think the foundation was properly laid for this evidence. This, of course, was essential, but did not require an accurate knowledge of every detail of the condition of the fruit at shipment or during transportation, but only such informa
While a critical examination of the questions objected to indicates that they might have been more carefully framed, they substantially comply with legal requirements. Besides, the discretion of the court, which to some extent controls in such matters, was not exceeded in the reception of the answers.
We are unable to adopt the claim urged for plaintiff that the testimony of the employees of plaintiff of the character of the fruit when put on the cars was conclusive, and could not be contested by properly qualified witnesses as to its condition when it readied St. Paul.
The plaintiff further criticises an instruction to the jury by the trial court whérein, referring to the counterclaim, it was substantially stated that when the several carloads arrived at St. Paul, defendants, as claimed, were induced to take them by plaintiff, when damages would thereafter be adjusted. The objection to this instruction is that there was not prefaced to such statement the qualification that the right of the defendants to recover must depend upon a finding that an agreement with the plaintiff was previously made. The court had both before and after this instruction stated in no unmistakable terms that defendants could not establish any rights under the counterclaim unless such an agreement had been made, and the failure to repeat this statement could hardly be considered necessary for the understanding by the jury of the issues-presented, for it cannot be required in every statement of the legal elements of an issue that the trial court should preface each with all the conditions upon which it depends. Such a course would often involve instructions in obscurity, and mislead, instead of enlighten, the jury. The whole charge correctly stated the law applicable to every question in the case, and it
A careful examination of the entire record has led us to the conclusion that the verdict was not against the weight of evidence, and that the charge of the trial court was not misleading.
The order appealed from is affirmed.
