Holten-Warren Lumber Co. v. Miller

64 Mo. App. 620 | Mo. Ct. App. | 1896

Gill, J.

The main, if not the sole, reasons urged for reversal relate to the court’s instructions. Some of these, too, are subject to technical criticism, which we will notice later on. But we do not think the objections of sufficient importance to justify a reversal of the judgment. As will be seen from the foregoing statement, each party made claims against the other— the plaintiffs seeking to recover damages on account of eight car loads of spoiled hay which they had bought from defendant and paid for as good hay; while defendant denied the hay was bad and set up an adverse claim for three carloads of hay, which he had delivered to plaintiffs and which had not been paid for. It was admitted during the trial that one car of the hay was imperfect and that the parties had agreed that plaintiffs should be allowed $26.21 on that account. It seems, too, conceded that plaintiffs had acquired from defendant three other car loads of hay, which had not been paid for and which, if of a good quality, was worth $143.10. So that, indeed, the controverted issues were narrowed down to this: Was the hay contained in the seven car loads (and which the defendant sold to plaintiffs) inferior or worthless at the time? If so, then plaintiffs should have been allowed, in the settlement of the accounts, more or less according to the condition of the hay. And if this snm, together with the $26.21 admitted, exceeded what defendant was entitled to for the three car loads not paid for, then plaintiffs should have had a verdict. On the other hand, if the hay contained in the seven cars was of good quality when delivered, then plaintiffs would have nothing to their credit except the $26.21; and if this was found less than what was due defendant for the three cars sold to plaintiffs, but not paid for, then defendant was entitled to a verdict for the difference. If these amounts should be equal, then defendant should have had a verdict merely acquitting him of any further liability. The court, then, properly gave defendant’s instruction number 5, reading as follows:

‘‘If you should find any sum due to plaintiffs on their petition, and should also find something due to defendant on his counterclaim, you will strike a balance between the two and render a verdict for the difference, if there shall be any difference; and if there shall be no difference, then you will simply find a verdict in favor of the defendant without stating any amount.”

We notice plaintiffs’ objections to this instruction, as set out in their brief, but think they are not well taken. If plaintiffs desired a more definite verdict, setting out in detail just what the jury should find on each particular matter in issue, then they should have asked an instruction to that effect. The jury evidently concluded that the hay was, to some extent, inferior, but in their judgment the defendant had made this up by furnishing to the plaintiffs the three car loads of other hay; in other words, they set off one claim against the other, finding them to be of the same amount. That was a matter for their sole determination; there 'was evidence to justify such a finding, and that concludes us.

By plaintiffs’ instruction number 3, the jury was peremptorily instructed to allow plaintiffs $26.21 for the car of hay admitted to- be inferior (and as was agreed on by the parties); and yet, in instructions given at defendant’s request, the court seems to have ignored this agreed damage and left the jury to give defendant a verdict if they should find that the hay was of good quality. These instructions (numbers 2 and 3 for defendant) were not drawn as they should have been, and the court ought to have so modified them as that they would not. appear in the light of directing a verdict for defendant on so narrow a consideration of the evidence. They were possibly calculated to mislead the jury, if considered alone. But in view of other instructions which, it seems, placed fully and completely all the facts before the jury, particularly instruction number 5 above quoted, we feel constrained to hold that the foregoing error was harmless. And for that matter, plaintiffs’ instruction number 1 is subject to the same criticism. In that, plaintiffs had the court tell the jury that they should recover and that a verdict should be returned for them, conditioned only that the jury find that the hay was rotten, damaged, or short in weight, eliminating altogether any claim the defendant might be entitled to on his counterclaim.

In the matter of the burden of proof, the trial court refused the following instruction asked by plaintiffs :

“Number 5. If the jury believe from the evidence that the seven cars of hay when it arrived at Hot Springs, Arkansas, and the one car of hay when it arrived at Seymour, Missouri, were in a damaged condition, then they will find that the said hay was in a damaged condition when it left Barton county, unless the defendant has shown by a preponderance of evideuce that the same was damaged while being conveyed to its destination.”

The court properly rejected this instruction. In order to recover, it was incumbent on plaintiffs to show affirmatively that the hay was in bad condition at the time when, and place where, it was sold and delivered to plaintiffs. This was in Barton county, Missouri, and some time before it arrived in Hot Springs, Arkansas. The state of the pleadings fixed the burden of proof. The petition alleged, and the answer denied, that the hay was in a bad and damaged condition when sold and delivered to the plaintiffs by the defendant. The plaintiffs were bound to affirmatively establish this allegation by a preponderance of the evidence or fail in their suit. Nor did such onus, at any time, shift from the plaintiffs to the defendant. Feurt v. Ambrose, 34 Mo. App. 360; Bunker v. Hibler, 49 Mo. App. 536.

It is further assigned as error, that the court erred in excluding legal, competent, and material evidence offered by plaintiffs, and erred in admitting improper-evidence. But counsel in their brief, or assignment of errors, fail to point out any particular ruling of which they complain. We must, therefore, disregard this assignment. It has been repeatedly declared by the appellate courts of this state, that they will not, on such general complaints go through the record, sift out and pass upon a great variety of rulings at the trial, on the admission or rejection of evidence. If it is desired to have such questions passed on, the appellant must, in the brief or assignment of errors, call attention to the specific rulings relied on and complained of.

Discovering no error'in the record, which, in our opinion, was prejudicial to the plaintiffs, the judgment will be affirmed.

All concur.