98 Mo. App. 616 | Mo. Ct. App. | 1903
The plaintiff and defendant entered into a written contract by which plaintiff agreed to take from defendant a farm valued at $18,000 and to give in exchange therefor certain other real estate valued at $4,600 and also a stock of merchandise, the latter “at cost and freight added.” The transaction to which the contract related was completed except the plaintiff insisted that the defendant had refused to- pay him the freight on said stock of merchandise, as he had bound himself to do. And based upon this alleged breach of the contract, this action was begun before a justice of the peace to recover the amount of freight so claimed. In the circuit court, where the cause was removed by appeal, there was a trial by a jury whose verdict, under instructions impliedly admitted to have been correct in expression, was for the plaintiff. It is conceded that the contract heretofore referred to was entered into and that the defendant has paid nothing for freight on said stock of merchandise. The defendant in effect admits his liability to the plaintiff under said contract, but contends that under some oral agreement entered into between the plaintiff and himself, the plaintiff is indebted to him (defendant) for the discount which he (plaintiff) received on the cost price of goods by reason of paying cash therefor, in an amount equal to that for which plaintiff sued.
No statement of any set-off or counterclaim was filed before the justice, as required by sections 3852, 4078, Revised Statutes, and therefore that defense was
It is no doubt true that the admission implied by the nature of the defense interposed by the defendant did not bind him and, therefore, the question remains whether or not the plaintiff adduced sufficient evidence to support the verdict. The obligation imposed on defendant by the contract to pay plaintiff, as a part of the purchase price of the goods, the amount of his outlay for the freight, or the cost of carriage thereon, from the place of purchase to that where the sale was made, is conceded, so that'the plaintiff,’ to make out his prima facie case, was only required to prove, the amount of such outlay or some part thereof.
It appears from the evidence that the value of the goods which the plaintiff transferred to defendant was seven thousand' dollars, and that the same were purchased by plaintiff in Chicago, Cincinnati, St. Louis and Jefferson City. That the freight paid on those purchased at the last two places was sixty-five cents per hundred. The first two are cities located in other States and we may know are more distant than the last. The freight paid on goods purchased at said first two places, it may be safely assumed, at least equaled that paid on those purchased at the last. There was some testimony which tended to show the weight of the- goods referred to in the contract, which weight afforded a basis for the computation of the aggregate amount of freight paid
It appears that the plaintiff and defendant, with the aid of Brunz, an experienced clerk who was then employed by plaintiff when he carried it on, undertook on an occasion to ascertain and determine the amount of the freight which was due the plaintiff under said contract ; that after ascertaining the various articles of merchandise and the value thereof on which no freight had been paid, and excluding the same from the computation, and “figuring” the amount due on the residue from such data and facts as were accessible, it was concluded all around that the freight paid by plaintiff would approximate three per cent on the value. It appears that the defendant, who, as already stated, took part in the undertaking, after it was through admitted that the result arrived at was right. In addition to this, the plaintiff testified that he was, certain from the bills that he paid as. much as two hundred dollars freight. It may be fairly inferred from the facts and circumstances disclosed by the evidence that the plaintiff paid a considerable amount of freight, but the difficulty encountered is in arriving at the exact amount. The proof as to this we think was sufficient to carry the case to the jury for its consideration, and no doubt such was the thought of the defendant, for it dqes not appear that either at the conclusion of plaintiff’s evidence or at that of the whole evidence, he interposed a demurrer thereto.
But the defendant contends that when he and plaintiff ascertained and determined that three per cent on the value of the goods was the amount of the freight paid by plaintiff thereon, they were attempting to compromise their differences and that, therefore, the court erred in admitting evidence of the same. The rule is
While the plaintiff was testifying he was asked to state what, in his judgment, the thousand dollars ’ worth of shoes purchased by him in Chicago would weigh, and to which question the defendant objected on the ground that the plaintiff, according to his own admission, had never weighed a box of shoes in his life. It appears that the plaintiff was a merchant and had been accustomed to handling shoes, and no reason is seen why he was not sufficiently qualified by practical experience to give his opinion or judgment as to the weight of the boxes of shoes purchased) by him in Chicago, on an issue like that in this case. WTiere a witness, though qualified to express an opinion, testifies that he
After a rather careful consideration of the entire case we have been unable to resist the conviction that the plaintiff-is entitled to recover some amount, and we can not say that that found by the jury was wholly unauthorized by the evidence; and this being so, it follows that the judgment must be affirmed.
