Atkin Bros. v. Southern Grain Co. ( 1908 )

BROALDUS, P. J.

The plaintiff is a corporation doing a wholesale and retail business at Shreveport, Louisiana, and the defendant Issy Landa, a commission business under the name of the Southern Grain •Company at Kansas City, Missouri.

The testimony showed that on the 15th of December, 1903, plaintiff telegraphed at Kansas City as follows: “Ship one car ear corn quick.” On the same day the defendant answered the plaintiff's telegram as follows: “We have booked your order as per your wire of to-day for one car of corn in shuck at 47 and one-half cents per bushel, delivered at Shreveport, our certificate of weight to be accepted as final. The corn will be loaded and gotten to destination as promptly as railroad facilities will permit, but with the understanding that as we do not control the M., K. T. road no cancellation is permitted if delayed in transit, although we will follow with a tracer and do what we can to get to destination as quickly as possible.” The M'., K. and T. Railroad Company received the corn for Shreveport at Harwood, Missouri, on December 18, 1903. The bill for the corn amounted to $152,36 plus $66.28 for freight A draft for the amount accompanied the bill ■of lading which was paid by plaintiff on December 24th, the corn having reached Shreveport the day previous. The com was not inspected by "plaintiff, but on Decern-ber 26th he rebilled it to Lake End a station 56 miles beyond Shreveport. After the corn reached Lake End it was opened on the 29th of the month and inspected for the first time. The bill of lading permitted inspection before acceptance of the corn and payment of the draft.

The plaintiff’s evidence tends to show that the corn upon being inspected proved to be in bad condition, some of it rotten; and that corn shipped at that season of the year, if sound would remain so, and would have been sound when it reached its final destination at Lake End. The defendant’s testimony tends to show that the com was sound when it was shipped; and that there was a leak in the cars which might have admitted rain and thus injured the corn. The plaintiff did not offer to rescind but retained the corn which was shown to have been of but little value. This is somewhat of a general statement of the facts of the case. The plaintiff’s suit is to recover the money paid for the corn and the charges for freight. It recovered and the defendant appealed.

This case was here before on appeal by plaintiff and reported in 119 Mo. App. 119. It was reversed for errors in the refusal of the court to give a certain instruction for the plaintiff and for giving the following one at the instance of defendant: “The court instructs the jury that notwithstanding the corn in the shuck was in bad condition when the car was opened, yet if. the plaintiff neglected to avail itself of any opportunities, if any there were, to inspect said car of corn when it arrived at Shreveport, Louisiana, as instructed in bill of lading with draft attached, which bill of lading permitted inspection before acceptance of said corn and payment of draft, and defendant was not guilty of any fraud or fraudulent misrepresentations, then your verdict must be for the defendant.” We held the instruction to be erroneous because in effect the jury were.told, “that if plaintiff bad opportunity to inspect at Shreveport before paying the draft he could not rely upon the implied warranty of sound and merchantable quality and must pay the full contract price.” And that the question whether plaintiff had accepted the corn in discharge of the contract or had waived his warranty is one of fact to be determined by the jury. A discussion of the principle involved was gone into in the opinion which it is unnecessary to repeat.

But defendant contends that the court was mistaken in its statement of the time when the corn arrived at and was inspected at its final destination. This difference of a few days of time could not, under the evidence have made any difference in the condition of the corn at the actual date of its inspection.

The defendant’s principal contention is that plaintiff was not entitled to recover under the pleading and evidence. The action was instituted before a justice of the peace where strictness of pleadings is not required. The action however amounts to an allegation of a breach of contract and offer to rescind. The court submitted the case to the jury solely on the around of a breach of the contract as will be seen by inspection of instruction numbered one given for the plaintiff.

The plaintiff had the right to abandon its theory of a rescission of the contract and submit its case upon a breach of the contract. Although plaintiff sought to recover the full amount of the contract price of the corn plus the freight paid, it was not, precluded from recovering for the actual amount of damages sustained. “When a breach of warranty occurs in the sale of a chattel and the purchase money has been paid the vendee may either retain the property and sue for his damages, which in such cases will be the difference between the value of the property as it was warranted to be' and its value as it is; or he may return the property and sue for the purchase money and interest, but in the latter case be must act promptly on notice of the breach.” [Kerr v. Emerson, 64 Mo. App. 159.] Notwithstanding the form of plaintiff’s statement it may be treated as an action for a breach of an implied warranty and there was no error in the giving of plaintiff’s instruction submitting the case to the jury on that theory if there was any evidence to support it. As it has already appeared there was ample evidence of a breach of warranty, it only remains to be seen was there any evidence of damages. The defendant contends there was not.

The testimony showed that the corn was almost wholly without value when it reached Shreveport. All the evidence tends to support the conclusion that the condition of the corn when it arrived at Lake End must have been practically the same as it was when it arrived at Shreveport. The plaintiff paid for the com and freight $218.64. The verdict was for $152, $66.04 less than the total paid for the corn on delivery. Referring to the evidence in detail we find that there was only about twelve bushels of corn that was of any value when it arrived at Lal^e End or Shreveport. Some of the "witnesses say it was all rotten. The jury was liberal to defendant. It only allowed plaintiff by way of damages what he paid for the corn, and allowed him nothing for the $66.28, he paid for freight.

. The defendant criticises the second instruction given for plaintiff, because the jury were left to determine for themselves what was the measure of plaintiff’s damages. Standing alone it would have been prejudicial but when taken in consideration with the one preceding where the jury was properly instructed as to that matter, they could not have been misled. The defendant has made several objections to the admission and' rejection of evidence mostly of a technical character. We do not deem them important, and whether there was or was not error in that respect the verdict of the jury could not have been otherwise. The verdict being for the right party we are forbidden by the statute to reverse it notwithstanding there may have been error in the trial. Affirmed.

All concur.