60 Mo. App. 635 | Mo. Ct. App. | 1895
Plaintiffs sued the defendant for damages in failing to take of them a lot of-hogs, according to a contract between them. Defendant prevailed in the trial court. Plaintiffs contracted with defendant to sell him a large number of hogs. Some ofthemwereto be fat, and others stock hogs. They were to be delivered at Seymour. The evidence conflicts as to the exact day of delivery.
1. The first question presented relates to the statute of frauds. Our statute, section 5187, Revised Statutes, 1889, provides that no sale of personal property of the price of $30 or more, shall be valid, unless the buyer accept and receive a part of the
Plaintiffs, however, make the point here that there was no contract for the sale of the hogs by plaintiffs to defendant, but that plaintiffs were merely employed by defendant to purchase the hogs for him. It is enough to say of this, that it is quite apparent such theory was not the theory upon which the case was tried below, and we hardly need repeat, that we will decide the case as it Was tried.
In our opinion, the instructions of the court were proper as applied to the various phases of the evidence. There was an addition made by the court to some of those offered by the plaintiffs, wherein plaintiffs, after submitting certain hypotheses, closed by declaring the measure of damages which plaintiffs were entitled to
The instructions in behalf of defendant merely submitted the case to the jury, from the standpoint of the defendant’s theory, and were proper. Th? tenth instruction was on the question of defendant’s alleged abandonment of the contract, and, under the evidence, must have had reference to his deliberate withdrawal therefrom while it was yet obligatory upon him. It was proper, therefore, to submit to the jury in this respept the question of defendant’s intention.
We have examined the objections made to the court’s ruling on the evidence, and have discovered no substantial error materially affecting the merits of the case. Whether any of the hogs were lost from overheating on the drive to Seymour, could have no bearing on the rights of the parties under the contract. Nor was it of any moment what plaintiff, Jennings, might have heard as to defendant’s being dissatisfied with his contract. Nor as to what plaintiffs paid for the hogs.
A full consideration of the points made by plaintiffs, has not led us to the discovery of anything which would justify our interference with the judgment, and it is accordingly affirmed.