97 Mo. App. 441 | Mo. Ct. App. | 1902
— Plaintiff brought this action to recover damages for breach of a contract for the sale of tobacco. Both parties are dealers in that commodity.
Plaintiff’s case as presented in his petition is that in October, 1897, defendant agreed to sell and deliver to plaintiff 50,000 pounds of “B. Scrap” tobacco, at four cents per pound “free on board,” Timmonsville, South Carolina, to be shipped to plaintiff at St. Louis, Missouri, as directed by plaintiff within six weeks from October 14, 1897, “said contract being evidenced by writings signed by the plaintiff and defendant.” But defendant afterwards refused to deliver the tobacco in response to plaintiff’s demand, within said period, etc.
Defendant denied the charges of the petition, and set up two counterclaims for merchandise sold to plaintiff at later dates than the transaction first mentioned.
The reply of plaintiff admitted the counterclaims.
The cause was tried before Judge Spencer, a jury having been waived.
Defendant was a member of the firm of W. L.' Cooper & Co., and we shall refer to him or to his firm indifferently, as there is no point of error assigned which attempts to sever defendant from the liability arising from his' membership of the firm.
' “B. S. Sold four cents, ship within six weeks. Answer. ’ ’
Defendant in like manner replied, October 14,1897, that he would “ship 50 B. Sep. within six weeks at four f. o. b.” and added “Write instructions.”
Then followed a series of letters and telegrams, about fifteen in number, between plaintiff, the broker and the firm to which defendant belonged. One of the letters of defendant’s firm, dated October 22, 1897, contained this statement: “We will ship the scrap to you as soon as possible, whenever you order us to do so.”
The following day defendant’s firm informed plaintiff by letter that it would “be impossible to ship the scrap with which we proposed to supply you within ten days” and that defendant, when he wired the acceptance to the broker, had “expected the option of shipping in six weeks.”
After that both the defendant’s broker and plaintiff protested to defendant by letter against defendant’s default, and endeavored- to persuade a performance. Then defendant’s firm insisted on drawing on plaintiff for proposed shipments in such a way as would require payment before examination or any view of the tobacco by plaintiff. Plaintiff would not consent to that course, and defendant admitted that the lot of tobacco bought by plaintiff had “slipped from our grasp,” and proposed to furnish some other stock in its stead. Plaintiff objected. The correspondence
The foregoing is a sufficient general outline of the facts.
The court gave, at the request of defendant, a declaration of law for findings in his favor on the counterclaims and then approved this declaration on the measure of recovery, viz.:
“If- under the other instructions given you you find for the plaintiff, you must determine from the evidence and market value or price, free on board cars at Timmonsville, South Carolina, of fifty thousand pounds of B. scrap tobacco at the time when the tobacco in controversy should have been delivered by defendant in compliance with plaintiff’s shipping directions. If that market value exceeds two thousand dollars you will deduct $2,000 from it, and the remainder will be the amount of your verdict. If that market value does not exceed $2,000, and if under the other instructions given you you find for the plaintiff, let your verdict be for one dollar.”
The learned trial judge found for plaintiff on Ms cause of action in the sum of $1,250, and, after deduct- ■ ing the admitted counterclaims, gave judgment for plaintiff for the balance, and defendant appealed after the usual steps to that end.
That proposition is but one application of the useful and just rule of our procedure which forbids any exception to be taken on appeal or writ of error “except such as shall have been expressly decided” by the trial court. R. S. 1899, sec. 864.
As the statute was not indicated in any proper way as a defense in the circuit court, it is unnecessary to weigh the argument of plaintiff claiming that the writings were sufficient to meet the demands of the statute in question.
We shall not find it necessary to investigate, the soundness of the ruling admitting the evidence of custom, because, in any aspect of it, the ruling was harmless, or (as the learned judge of the circuit declared) not “vital in this case.” - The defendant did not pretend to execute this agreement. He refused to perform and admitted that the particular lot of tobacco which he had sold by sample to plaintiff had “slipped from our grasp.”
Where one party absolutely refuses to perform a
No error is proper ground for reversing a judgment unless it prejudiced the substantial rights of the adverse party upon the merits of the action. R. S. 1899, secs. 659, 865.
These comments dispose of all of the assignments of error which seem to call for remark. Finding none of them well taken we affirm the judgment.