71 Mo. 149 | Mo. | 1879
This was a suit to recover the difference between the contract price and market price at the time and place of delivery of sundry boxes of meat packed by the plaintiffs for the defendant, and delivered to him under a certain contract of sale, which meat the defendant failed and refused to accept. The defendant admitted the contract of sale and his refusal to accept the meat delivered, and alleged, as a reason for his refusal, that the" meat tendered did not conform to the requirements of the contract. The contract, which was entered into on the 22nd day of August, 1872, called for 500 boxes long boneless (long clear) middles, to average not less than fifty-two pounds each middle, and 500 boxes short boneless (short clear) middles, to average not less than forty-two pounds each middle, both lots at six and three-quarter cents per net pound of meat, delivery to be made at Kansas City, Mo., on board cars, at the option of the sellers, during the month of December, 1872, and to be paid for in cash on delivery; the above meat to be cured, cut, trimmed and packed according to the requirements of the New York standard for long and short boneless (clear) middles.
On the 20th day of December, 1872, the plaintiffs notified the defendant that they were ready to begin delivering the meat under their contract. Thereupon it was arranged between the parties that the meat should be inspected before it was delivered on board the cars, and one James McCullough, a professional inspector of meat, was employed by the defendant to see that the meat offered by the plaintiff under his contract was properly cut, cured, trimmed, boxed and weighed. The plaintiffs were notified of his selection as inspector, and were directed to
The facts stated appeared in evidence at the trial, and the inspector also testified that the meat was according to contract. The defendant offered to prove that the meat was not according to contract, but this testimony was rejected by the court. The cause was tried without the aid of a jury. At the instance of the plaintiffs, the court gave the following declaration of law: If the court, sitting as a jury, believe that the meat described in the contract offered in evidence and admitted in the pleadings was tendered to defendant by plaintiff's, and delivered on board the cars at Kansas City, within the time required by the contract, and that said meat, prior to said tender on said cars, had been inspected by the agent of defendant, and accepted by him, to be of the kind, quality and quantity called for in said contract; and when said meat was so tendered by plaintiffs, defendant failed and refused to receive and pay for the same, then the finding should be for the plaintiffs.
No question is made as to the measure of damages* and we therefore omit the instruction on that subject. The substance of the agreement between the parties was that the defendant would accept such meat, when delivered', as had been inspected by McCullough, and pronounced by him to conform to the requirements of the contract. There