Webber v. Umback

263 P. 786 | Kan. | 1928

The opinion of the court was delivered by

Dawson, J.:

This was an action to recover damages for breach of a contract of purchase and sale.

The facts were these: Defendant Umback purchased 100 hogs from plaintiff for $2,300. The hogs were to be selected from plaintiff’s herd of 150 or 160 head. Defendant came to plaintiff's farm in Ford county to select the hogs, and when he had chosen 53 of them he discovered that he had made a poor bargain — that there were not enough large hogs to make up the hundred he had purchased, so he rescinded the contract. Plaintiff thereupon shipped 100 of his largest hogs to Kansas City and sold them at the best price available, and after paying the railway freight rate from Dodge City, plaintiff’s nearest shipping point, together with other proper and usual expenses, he failed to realize the $2,300 which defendant had agreed to pay for them, and sued 'defendant for the difference — a matter of $490.30.

A verdict and judgment in plaintiff’s behalf were rendered in the sum of $296.88.

Defendant appeals, assigning two errors — in overruling his demurrer to plaintiff’s evidence, and in the admission of incompetent evidence. A third assignment of error, that the verdict was not sustained by sufficient evidence, is merely a repetition of the point urged against the ruling on the demurrer.

It seems to be defendant’s theory that as there was no market for hogs at Dodge City, there was in consequence no market value of hogs at that point and no damage proved. That does not follow. The trial court and jury properly took into consideration the fact of common knowledge that the principal hog market for Ford county as for nearly the whole state was at Kansas City (State v. Kelly, 71 Kan. 811, 820 et seq., 81 Pac. 450; Chaput v. Demars, 120 Kan. 612, 244 Pac. 1042; State v. Bell, 121 Kan. 866, 869, 250 Pac. 281; 23 C. J. 59, 78); and at least one proper way to ascertain the market value of hogs in Ford county is to ascertain their market value in Kansas City and deduct freight charges from the local shipping point in Ford county (Dodge City, apparently) to Kansas City and any other necessary expense pertaining to the sale of the hogs in Kansas City, and the result would show with sufficient precision the market value in Dodge City. (Evans v. Moseley, 84 Kan. 322, 114 Pac. 374; Coöperative Association v. Schultze, 112 Kan. 675, 212 Pac. 646.)

The facts concerning the Kansas City market price for hogs were shown by producing a copy of the Daily Drovers Telegram, a well known Kansas City newspaper, which is widely read because of its exhaustive reports of all matters of general interest to growers and dealers in live stock throughout the trade territory tributary to Kansas City. This paper gave the market price for hogs on the day plaintiff’s hogs arrived, and indeed it reported the actual sales of plaintiff’s hogs on that day’s market. This was competent evidence, and defendant’s excerpts from forty- and' fifty-year-old decisions to the contrary are worthless nowadays. (Ray v. Railway Co., 90 Kan. 244, 248, 133 Pac. 847; Poultry Co. v. Railroad Co., 99 Kan. 540, 163 Pac. 448; Nelson v. Railroad Co., 116 Kan. 35, 225 Pac. 1065; 22 C. J. 188; 10 R. C. L. 1167; 2 R. C. L. Supp. 1163.)

Defendant’s objections to the judgment cannot be sustained, and it is therefore affirmed.