89 Mo. App. 1 | Mo. Ct. App. | 1901
This is an action which was brought before a justice of the peace. The statement, filed by the plaintiff, was to the effect that the defendants shipped from Kansas City to plaintiff’s order at Daleville, in the State of Arkansas, a carload of hay; at the same time making a draft on plaintiff for $63.31, which was paid. That on the arrival of the hay it was f ound on inspection to be unmerchantable and not according to contract in any respect; that thereupon plaintiff refused to' receive it and so notified defendants and demanded repayment by them of the said, amount of $63.31., which was refused.. There was a trial of the cause in the circuit court, where it had been removed by appeal, which resulted in judgment for the plaintiff and defendants appealed.
I. The defendants urge as a ground for reversal the action of the court in overruling their objections to the reading by plaintiff in evidence of the deposition of one Cochran. This deposition, we may infer, was regularly taken and certified in every respect except that the jurat of the officer taking the same was not appended thereto. It is insisted that for this omission the deposition should have been excluded from the evidence. There was in force in the court a rule providing that all exceptions to depositions, except for ineompetency or irrelevancy, should be considered waived unless filed within two days after the filing of such deposition had been served on the opposite party, or his attorney, and if no such notice had been given such exceptions must be filed at least two days before the cause is set for trial, etc.
The defendants insist that this rule is inapplicable
II. The defendants further insist that the court erred in refusing to permit them to show an agreement made by them with the Arkadelphia-Lumber Company to take the hay after notice of the refusal of the plaintiff to accept it. The hay had been purchased by plaintiff for the Arkadelphia company and had been ordered to be shipped to Daleville station for it.
The plaintiff, on receipt of-this, inclosed it to the defendants with a letter stating that it appeared from the inclosure that the Arkadelphia company had practically refused the hay at any concession and that it was willing to send a man to Dale-ville to examine the hay and to adjust it with that company; and further, that it did not like to undertake this for it was afraid that company would expect concessions on all the hay; and to this was added a request “to kindly inform us what you wish us to do in the matter.” Defendants’ only response to this was “we don’t think you will have any more trouble in getting rid of the car.” On receipt of this evasive letter plaintiff promptly wrote to defendants that “we must have instructions from you at once what to do with this car for the Arkadelphia company, as we have informed you, and promptly, too, have
Three days after plaintiff had received, the defenlants’ letter just referred to, it received another from the Arkadelphia company saying it preferred to have nothing to do with the hay. This was inclosed to defendants with a request that they state what disposition should be made of the hay. Ten days later on, the plaintiff ordered the car to be shipped to Little Rock, its place of business, hoping there to get a market for it. It then by letter notified defendants of the fact and requested instructions as to the disposition of the hay. “Demurrage $23. Shall we sell for your account ? Don’t think we can get charges out,” etc. This brought a letter from defendants saying the place to handle the hay was at Daleville. It further stated that the defendants had had some correspondence with the Arkadelphia company and that they supposed that company would take the hay and keep an account of the bad bales. It was further stated in the same connection that “if the hay had been handled at Daleville promptly, as we wrote you, there certainly would not have been so much damage on it so we will not instruct you.” Three days after receipt of this, the plaintiff wrote defendants two more letters in which it vías stated that
The plaintiff on receipt of this wrote the defendant that “we made the Arkadelphia company the proposition to assort the hay and charge us back with the inferior bales, which it refused to do and so we informed you. To help you out in the matter after the Arkadelphia company positively refused to handle the car upon the conditions above named, we wrote you and to which you said “we have no further instructions.” It was further stated in one of the plaintiff’s letters that after the hay had been brought to Little Rock and examined, it was found to be in the condition stated by the Arkadelphia company, and that it could not be accepted under the contract. The foregoing embraces the substance of the written correspondence between these parties.
This correspondence very clearly shows that the plaintiff did nothing to “balk” defendants in their efforts to dispose of the hay. It is disclosed that the plaintiff was not made aware of the fact that defendants were independently negotiating with the Arkadelphia company in respect to the hay until after it had caused the same to be hauled to Little Rock. No intimation that such negotiations were in progress was given to plaintiff. How, then, could the defendants’ rejected offer of evidence under these circumstances have bound the plaintiff in any way ?
If the plaintiff, in its endeavors to assist the defendants, in any way balked the sale by them to the Arkadelphia company, they have only themselves to blame therefor. Had they informed the plaintiff of such negotiations the latter would certainly not have removed the hay pending such negotiations. As the Arkadelphia company would not accept it on the conditions named in defendants’ instructions to plaintiff, and as there seems to have been no market for it at Daleville, the act of removal to Little Rock was what a prudent business man would do under such circumstances. We are unable to discover anything in the entire evidence to justify the conclusion that the plaintiff, at any time or by any act, accepted the hay under the contract. Nor does it appear that after it formally
III. We can not see that the plaintiff’s second instruction, which told the jury in effect that there was no evidence of any agreement between defendants and the Arkadelphia company that the latter was to take the hay and keep an account of the bad bales, etc., was, as defendants contend, improper, or that it was prejudicial to the defendants.' The cases cited by defendants do not support this contention.
IV. The letter of the Arkadelphia company to, plaintiff,
The letters from the Arkadelphia company to defendants of a later date, which were offered in evidence and rejected by the court, did not relate to any issue in the case and were inadmissible for any purpose. Any subsequent agreement or arrangement which these letters may have shown to have been entered into between the defendants and the Arkadelphia company in respect to the hay could have no bearing on any issue in this case.
The judgment will be affirmed.