122 Mo. App. 475 | Mo. Ct. App. | 1907
(after stating the facts). — 1. The split between the parties was caused by the. inability of plaintiff to produce evidence to satisfy defendant that the goods were being invoiced at St. Louis cost prices. The contract is silent in regard to the means or evidence by which the St. Louis cost of the goods should be ascertained, and plaintiff’s contention is that defendant was bound to submit to the judgment of experts as to their cost, or furnish some better means of arriving at their cost; that he took upon himself the hardship, if any, of the contract, in regard to arriving at the St. Louis cost of the goods'. We cannot give our assent to this contention. In the interpretation of every contract, whose terms are not definite and certain, the situation of the parties, in respect to the subject-matter of the contract, should be taken into account, in order to determine what was in their minds at the time. Plaintiff had purchased all the goods and had, presumably, received invoices of each of his purchases, as is the custom of trade. This fact, we must presume, was in the minds of the parties when the contract was entered into', and the goods and the evidence of the original cost were, or were presumed to be, in his possession, and these facts must have been in the contemplation of ■the parties at the time the contract was made, therefore, it devolved on plaintiff to furnish the evidence of the cost of the goods at St. Louis. Whether or no plaintiff furnished, or offered to furnish, reasonably satisfactory evidence of the St. Louis cost of the goods, was a question of fact for the jury. That body, on substantial evidence, found that he did not, and the verdict should not be disturbed, unless reversible error intervened at the trial.
2. Plaintiff interposed a number of objections to the admission and exclusion of evidence. In each instance where competent evidence offered by plaintiff was rejected, it was subsequently admitted, on account of the parties shifting their position in the progress of the
3. The court modified several of plaintiff’s instructions before giving them. This action of the court, plaintiff contends, is erroneous. As asked, these modified instructions made the imperative duty of defendant to ascertain the St. Louis cost of the goods; as modified, he was required to ascertain such cost by any means at his command. The modifications were extremely liberal to plaintiff and gave him the benefit of a more favorable construction of the contract than he was entitled to.
4. The contention, that defendant’s instructions are based on irrelevant and incompetent evidence is, as we have seen, without merit.
Discovering no reversible error in the record, the judgment is affirmed.
