Hunt v. Hunter

52 Mo. App. 263 | Mo. Ct. App. | 1893

Ellison, J.

— We have substantially adopted the statement of the case as made by plaintiffs, and, from that statement of the issues between the parties and of the legal questions involved in connection with the action of the court thereon, are of the opinion that the judgment should be affirmed.

The cause being heard by the court without a jury we will not give that critical examination of the instructions we otherwise would, since when no jury is called we only look to the instructions to discover the theory upon which the trial court proceeded. Keeping this in view it is evident that plaintiffs have no just ground to complain of the two instructions as to custom, one Lor plaintiffs and one for defendant, on the score of inconsistency. . The two read together as one show that the court’s view of the law of custom was correct and not inconsistent when applied to the case.

The plaintiffs contend that the court erred in construing their letter to defendant as an offer of cancellation. "We think not. The portion of the letter necessary to notice follows a lengthy complaint of defendant’s action under the contract, and is of the following purport (italics, ours): “Tn conclusion, we would say that if you hold such opinions as stated in your letter, it is much better that our mutual transactions should cease. There is no reason, whatever, why we should lose anything by this car. We, therefore, add interest to our new bill against you for the car. Formerly our business relations together have been very pleasant, and if things can continue in their accustomed way we should be very glad to trade again with you, but not otherwise. ”

To this the defendant made the following answer: “So far as your relations with me ceasing, that is dll right. I will load the car for Laredo, in fact, the car may now be loaded, for all I know, and that can end our business relations, as you so wish. I wrote you over a week since for billing for unfilled orders, and, as you do not send them, will cancel same.” We regard plaintiffs’ letter as a proposition for cancellation and defendant’s answer as an acceptance. And in this connection will state that it was proper for the court to interpret and construe the two writings. Edwards v. Smith, 63 Mo. 119; Fruin v. Railroad, 89 Mo. 397; Black River Lumber Co. v. Warner, 93 Mo. 374. Plaintiffs’ intention in writing this letter seems to be sufficiently plain and apparent from its terms, and any explanation as to private intention ought not to be permitted to control its evident meaning.

So far as we are advised by this record it was proper to admit evidence as to custom in relation to contracts like the one involved herein. No evidence is presented to us by the abstract. No objections to testimony appear. The fact that appellants have set out in their brief matters which they state were admitted to have been proven, or, if not admitted, conclusively proven, cannot dispense with the necessity of objections to testimony and exceptions taken to the overruling of such objections, in order that we may notice them.

We can discover no error at the trial and, therefore, affirm the judgment.

All concur.