160 Mo. App. 513 | Mo. Ct. App. | 1911
Plaintiffs brought their action against defendant, claiming damages in the sum of $584.27, arising out of a breach of contract in the sale by defendant to plaintiffs of two carloads of corn. On a trial of the case before the court, a jury having been waived, there was a finding and judgment in favor of plaintiffs for $126.90. Prom this judgment, plaintiffs in due time appealed to this court. The cause was transferred by us to the Springfield Court of Appeals under the provisions of section 3939, R. S. 1909, and the judgment of the circuit court reversed. Thereafter the cause was transferred back to us in consequence of the holding of the Supreme Court, that the Act of the General Assembly (Acts 1909, p. 336, Sec. 3939, supra), was unconstitutional and that all judgments rendered by the Springfield Court of Appeals in causes so transferred were void. [State ex rel. Dunham v. Nixon, 232 Mo. 98, 133 S. W. 336; State ex rel. St. Louis Dressed Beef & Provision Co. v. Nixon, 232 Mo. 496, 134 S. W. 538; State ex rel. O’Malley v. Nixon, 233 Mo. 345, 138 S. W. 342.] A
It appears that plaintiffs are a co-partnership, trading under the name Interstate Grain Company, with their chief office at Nashville, Tennessee. They were engaged in buying corn in Missouri, through an agent, and in the case before us, bought of defendant two loads of corn in the shuck, at forty-five cents per bushel, f. o. b. cars at or near Caruthersville, in this state. The cars were loaded about November 16, 1907. Defendant thereupon made two' drafts on plaintiffs, one for $363.60, for 808 bushels of corn, and one for $281.25 for 625 bushels. The drafts were attached to the hills of lading, sent to plaintiffs and paid by them —when paid is not clear, hut they appear to have been sight drafts, and to have been paid when presented and before the cars reached Eufaula. One car reached Eufaula, Alabama, November 29, the other December 3d.
In a letter from plaintiffs to defendant, notifying the latter of the bad condition of the corn, plaintiffs write that they are “advised by the party to whom we shipped the car of corn at Eufaula, that one car,” etc. So that it seems that while sold to plaintiffs f. o. b. Caruthersville and billed to them and hills of lading made out to plaintiffs and drafts drawn on plaintiffs, the cars had been ordered sent by plaintiffs direct to Eufaula, to the R. M. Jennings Brokerage Company. Unfortunately neither the bills of lading nor drafts are in the abstract but they appear to have been dated November 16, 1907. "When the carloads of corn arrived at Eufaula and were opened, accord
The corn in question was purchased from defendant for delivery to plaintiffs on board cars at or about Caruthersville. It was delivered about the 16th of November in the cars to plaintiffs and plaintiffs took charge of it then and there, as shown by their letter heretofore referred to, and ordered its transportation to Eufaula. The question of liability in the case turns on the condition of this corn at the time it was loaded into the cars, and there is positive testimony by several witnesses that at that time it was sound, dry, in good condition. One car was in transit from the 16th of November to the 29th of that month, a period of thirteen days; the other car until the 3d of December, a period of seventeen days. During this intervening ' time the corn was at the risk of plaintiffs. While it is true that the testimony is positive that the corn reached Eufaula in bad condition, the testimony of those witnesses who there saw it as to what caused the bad condition, is a matter of opinion. However strong the probabilities may have been that if the corn had been sound when loaded; it could not have been in the condition it was found to be when received, these probabilities rested on matter of opinion. Obviously the learned trial judge- preferred to accept the positive testimony of parties who had loaded it or seen it loaded against this opinion testimony, testimony founded on probabilities and not on actual facts. In short, weather conditions, the delay in transit, the change of climate from Missouri to Alabama, may in the opinion of the trial judge, account for the difference in the condition of the corn when shipped and that in which it arrived at its destination. The defendant in this case was only responsible for the condition of the corn when delivered on board cars at or about Caruthersville and was not in any manner-what
There was no denial of the fact that the quantity of corn drawn for and invoiced and paid for by plaintiffs, was more than the quantity actually shipped; that the shipment was short several hundred pounds in weight over the quantity paid for. The court allowed for this and awarded plaintiffs the difference.
To put the matter briefly, there is an irreconcilable conflict in the testimony in the case over the real issue in the case. That being so, a verdict of the jury is conclusive upon the appellate court. So in an action at law, is the finding of the trial judge. It matters not whether the testimony produced before the trial judge is given orally or by way of deposition.. In either event, he is the judge and the trier of fact. If there is substantial evidence to support that finding, the appellate court has nothing else to do and no power to do anything, other than confirm that finding, provided, that in arriving at the finding, it is apparent that error of law has not been committed or the law misapplied.
In the case at bar, we find nothing to warrant us in saying that the trial court erred in law.
At the request of plaintiffs the court gave four declarations of law and refused three. At the instance of defendant it gave one. It will serve no useful purpose to repeat here the declarations of law given at the instance of plaintiffs, nor to notice those refused, except as to one. In the fifth declaration of law, which was asked by plaintiffs and refused, the court was asked to declare the law to be, “that if the finding is for the plaintiffs, they should be allowed such sum in damages as the evidence shows to be the difference between the price they had the corn sold for at Eu
Moreover, there is not a particle of testimony in the case justifying any inference that it was in contemplation between the parties when the corn was bought and sold that it was intended for the Eufaula market. According to the testimony of Mr. Schofner, one of the plaintiffs, the corn was bought through an agent of plaintiffs, and the only thing that Mr. Schofner testifies to as to the transaction, is that plaintiffs bought the corn f. o. b. ears “supposed to be at Caruthersville. ’ ’ There is not a word in the testimony intimating that defendant had any knowledge whatever as to where plaintiffs intended to ship this corn. As the headquarters or offices of plaintiffs were at Nashville, Tennessee, defendant might well assume that the corn was to be shipped to that point. But. that is immaterial, for there is no testimony in the case that defendant sold with reference to delivery at Eufaula. All that defendant was to do was to load it on the cars at or near Caruthersville; when this was done the loaded cars were thereafter at the order and risk of plaintiffs. There is, therefore, no justification whatever, by anything in the testimony, for accepting the market value of corn at Eufaula, Alabama, as a proper element in estimating the damage in this case.
The only declaration of law given at the instance of defendant was to the effect that if the court found from the evidence that the cars of corn or either of them were billed out at a greater weight to plaintiffs and paid for by plaintiffs at a greater weight than said cars or either of them weighed, then plaintiffs are entitled to recover the difference in value of said corn, based upon the actual weight of said corn, and if the court finds that plaintiffs have already paid for said corn at an erroneous weight, then they should recover such sum as the plaintiffs have so overpaid. This
In a letter to defendant, plaintiffs laid tbe loss arising over tbe shortgage in weight at $100. Tbe court allowed them $126.96. Plaintiffs have no cause to complain of this.
In view of tbe evidence in tbe ease, its weight and credibility being for tbe trial court, we are unable to find any ground upon which tbe judgment of the circuit court of Pemiscot county in this case should be reversed. Our conclusion is that it should be affirmed and it is so ordered.