80 Mo. App. 449 | Mo. Ct. App. | 1899
The account of sales reported showed that it brought $10 per ton. After deducting .advancements and charges, there appeared to be due plaintiffs $202.01, the payment of which was demanded by plaintiffs and refused by defendant, and to recover which this suit was brought.
The defendant by its answer pleaded a counterclaim to the effect that the plaintiffs had negligently held the hay shipped to them by defendant and that if they had exercised ordinary diligence they could have sold the same at a profit-, and that in consequence of the negligence of the plaintiffs in the premises defendant had been damaged, etc. The plaiutiffs in their reply alleged as an excuse for the delay in making sale of the hay a drooping market, occasioned by the supply exceeding the demand, etc.
There was a trial and judgment for defendant for $21.
The ground of objection urged against the action of the court in giving defendant’s said instruction is that the issue
“Gentlemen:
We quote you to-day (timothy) fancy, $18; choice, $17, $17.50; strict prime, $16 to $16.50; good prime, $15 to $15.50; ordinary prime, $13 to $14; prairie, $8; Texas, $9; Kansas, $9 tp $10. Tours truly,
“LI. W. Benedict.”
The plaintiffs testified that the board of trade quotations were wholly fictitious; that there were two sets of quotations, one for the west and the other for the city deals, and that there was a difference of about $3 a ton in favor of city dealers. These fictitious and misleading quotations, it would seem, were from time to time sent by the plaintiffs to defendant without explanation. But if the three dollar fiction be deducted from the price per ton, as quoted by plaintiffs, still the price which the defendant’s hay was reported to have brought falls far short of what it ought to have brought, even if only prime quality. The testimony of both the producer of the hay and Box, who purchased it for defendant, was that it was in quality choice. These witnesses were experienced in the production, handling and grading of hay. * The plaintiffs’ witness testified that defendant’s hay was only prime, which in the New Orleans market seems to have been worth less by some $2 per ton than choice hay. It may have been when defendant’s hay was sold that owing to its long detention and exposure
Notwithstanding that, when the defendant’s hay reached the place of consignment the supply on the market was in excess of the demand, a fact which it appears was well known to plaintiffs, yet plaintiffs continued to hold the same, well knowing, too, that the new crop was about to arrive to still further augment the existing over-supply. The plaintiffs knew, or ought to have known that the new crop would be preferred to the old and that in consequence of that the price of' the old would continue to droop. Yet, as experienced dealers in hay, the plaintiffs held on to the defendant’s consignment until, if their account of sales is to be credited as correct and bona fide, there was practically little or no demand for old hay of any grade.
It appears that the defendant wrote the plaintiffs several letters requesting report of sales, and to one of these the plaintiffs answered giving as an excuse for their failure a dull and drooping market. To this the defendant on February 15, 1896, replied that, “you probably have done the best that could be done with the hay. It is in your hands and you will act on your best judgment as to time to sell and at what price.” The defendant after this wrote plaintiffs one or more letters but received no response. Finally on August 1, the defendant wrote plaintiffs saying, “We certainly think that you have had ample time to make returns and can not understand this method of doing business.” On the twenty-fifth of the same month the plaintiffs responded inclosing account of sales showing result previously stated. It appears that plaintiffs on receipt of the defendant’s said letter of August 1, concluded to sell the defendant’s consignment and so caused it to be sold at auction in the yards of the delivering carrier where it had remained since its arrival, under a tarpaulin.
This is not a case where the consignor was insolvent or hadrefusedtofurnishindemnity for the advancements, in consequence of which the consignees sold the consignment in order to reimburse themselves, but it is one where the consignees have neglected to sell until the market had so declined that the consignors suffered great loss by such neglect. The plaintiffs do not pretend that the delay in making the sale was influenced by the fact that they had made advancements. No such excuse is pleaded or relied on. The case must be considered as if no advancement had been made.
The simple question for the jury was whether or not, under all the facts and circumstances disclosed by the evidence, the plaintiffs made sale in good faith and with diligence, or, which is the same thing, whether or not the plaintiffs made the sale in accordance with the usages of trade and within a reasonable time after the receipt by them of the consignment. If the sale was not so made, the plaintiffs were guilty of negligence and liable to the defendant for the consequences. It seems to us that the defendant’s instructions, hereinbefore set forth, expressed to the jury with sufficient clearness and accuracy a proper rule for their guidance. No substantial conflict is perceived between the instructions given for plain
Plaintiffs have raised several objections to the ruling of the court in respect to the admissibility of evidence and in refusing instructions and these we have examined but find no error that would justify us in disturbing the judgment, which will therefore be affirmed.