| Mo. | Mar 15, 1867
delivered tlie opinion of tlie court.
The counsel for the appellants really insists upon only two grounds for the reversal of the judgment in this case. The first is that the court gave inconsistent and conflicting instructions ; and second, that the third instruction given for the plaintiffs was not warranted by the evidence. An examination ,of these two points will not require an extended statement of the case.
It seems to have been a suit instituted in the Circuit Court of St. Louis county to recover of defendants a balance of three hundred and fifty-nine and dollars, alleged to be due and owing to the plaintiffs upon a contract for the sale and delivery of a certain number of barrels of apples at the city of Quincy, Illinois, and also at Clarksville, Mo. The verdict and judgment was for the amount claimed, and the defendants bring the suit here by appeal.
The court gave all the instructions asked for by both parties, and the inconsistency complained of is alleged to exist in plaintiffs’ fifth instruction and the one of the same number asked by defendants.
A memorandum of the contract signed by the defendants was declared upon and fully set out in the petition. The defendants set up in their answer and produced on the trial a counterpart of the same, the two differing somewhat in phraseology. This difference between the two instruments, it is claimed, was not harmonized by the instructions. It is insisted that the two taken together are so inconsistent and conflicting as to destroy each other, and to leave the jury without any judicial construction of the contract .between the parties.
It was certainly improper to leave it to the jury to find as a fact in the case, which of the two instruments contained-the entire contract between the parties; and if the instruction of the plaintiffs stood alone upon that point, we should have no hesitation in declaring it to be erroneous.
But the instruction given at the instance of the defendants furnishes a sufficient solution of the difficulty, by defining
“ 5. The word ‘ selected,’ as used in the contract, does not mean merely that the article of apples was to be chosen out or set apart, but that they wore to be selected with reference to their being of merchantable value and proper subjects of trade.”
This was a judicial determination of what constituted the entire contract between the parties, and the construction of the two instruments thus taken together placed the question before the jury in a light as favorable as the defendants could have desired.
The next point of objection is the third in the series of instructions giv.en for plaintiffs. It is predicated upon the idea that there was evidence in the cause tending to show a delivery of the apples at Quincy; and if so delivered and accepted by the defendants or their agents, then all inquiry as to the actual condition of the fruit at that time was precluded by such delivery and acceptance. We think that the instruction was warranted by the evidence preserved in the record, and, as these were facts for the jury, and passed upon without misdirection by the court, the finding must be taken to be conclusive.
Upon a view of the whole case as presented by the record we find no errors sufficient to require a reversal of the judgment, and it must therefore be affirmed.