Jones v. Shale , 1889 Mo. App. LEXIS 83 ( 1889 )

Rombauer, P. J.,

delivered the opinion, of the •court.

This is an action to recover damages alleged to have been sustained by the plaintiff, by the defendants’s breach of a contract of sale. The contract sued on is •embodied in the petition and is filed herewith. It is in the following words:

“Clarence, Mo., Aug. 12, 1881.

“I this day sell to H. V. Jones, five thousand bushels of number two mixed corn, to be delivered in Clarence, Shelby county, Missouri, on or before the last day of April, 1882, for forty-five cents per bushel. And it is further agreed by me to put it in the cars shelled, if I remain in my present mill, at a reasonable price for the shelling, and take St. Louis weights and inspection, if delivered in the cars.

‘•'S. P. Shale.

“ H. Y. Jones.

“ Received on the within contract fifty dollars.

“S. P. Shale.”

The plaintiff states that he tendered performance of his part of the contract, but the defendant failed to deliver the corn as agreéd to plaintiff ’,s damage in the 6um of twenty-seven hundred and fifty dollars.

The answer admits the execution.of the contract, and sets up the following special defenses, which are controverted by reply.

(1) That at the time of making the contract, it was the intent and understanding of the parties thereto, that the corn therein mentioned was not to be actually •delivered on the one-hand and paid for by the other at said price, but that the said contract was to be settled by the payment to the one or the other, as the'case might be of the difference between said contract price and said market price.

(2) That by sundry assignments endorsed on the contract, and deliveries ' thereof, said contract at the time of bringing the suit, did not belong to plaintiff, but to the firm of Hyatt & Burkholder.

Upon the trial of the cause before a jury, there was a verdict and judgment for plaintiff in the sum of one thousand dollars, from which defendant prosecutes this appeal.

The errors assigned are the rulings of the court upon the evidence and instructions.

The contract when offered' in evidence by plaintiff contained the following indorsements:

“Clarence, Mo., Aug. 19, 1881.

-' " “I hereby agree to deliver the corn herein contracted to Hyatt & Burkholder, either in car shelled or in the ear in their elevator, Clarence, Missouri, at fifty-five cents per bushel, and it is further agreed that each party deposit five hundred ($500) dollars in the banking house of Holtzclaw & Graskill, to guarantee fulfillment of contract.

“H. V. Jones,

“Hyatt & Burkholder.”

■«< Clarence, Mo., Oct. 18,ilr81.

“We hereby agree to deliver the within contracted corn to W. L. Thompson in- our elevator in Clarence, Said W. L. Thompson agreeing-to pay-us seventy cents per bushel- for same, he depositing five hundred ($500)' with Holtzclaw & Graskill as security for receiving same when delivered. ' ' -

“Hyatt & Burkholder.

“Wm.L.-Thompson.”

The plaintiff read the contract, and the defendant moved the court to compel him to read the endorsements also. This the court refused to do, and also refused to declare that the endorsement, were in evidence. The defendant excepted and still excepts.. There was no error in this ruling. The endorsements were, in no sense, part of the contract sued upon by plaintiff, and if authorized so to do he might have stricken them all out. 2 Grreenl. Ev., sec. 166. The most that defendant could claim was that the paper having been filed as an exhibit he was at liberty to. read any part thereof in evidence without further proof. This was conceded to him by the court and the endorsements were subsequently read in evidence by the defendant. We may as well add on this branch of the case that there is no substantial controversy touching the fact, that either Hyatt & Burkholder or Wa L. Thompson claim or did ever claim any right under the contract as against the defendant, nor do the endorsements admit of any such interpretation, since they are original undertakings, and do not purport to be an assignment of the contract. Hence the question whether the contract was, or was not assignable is wholly outside of the record.

Touching the main contention, namely whether the contract was .one for the sale and delivery of .grain or a mere wagering contract, we say this. The following propositions are settled under the decisions in this state: Where either party contemplates actual delivery of the commodity, it is not a wager. Cockrell v. Thompson, 85 Mo. 510; Teasdale v. McPike, 25 Mo. App. 341. The fact is immaterial that the seller has not got the goods at the date of the contract, and has to buy them himself, or that the date of deliver y is left optional with him, within specified limits of time. Crawford v. Spencer, 92 Mo. 498; Kent v. Miltenberger, 13 Mo. App. 503. On the other hand it is equally well settled that a writ, ten contract, though valid on its face, may, by extrinsic evidence, be shown to have been a mere wager on th& future state of the market, and as such invalid. Kent v. Miltenberger, supra.

The instructions given to the jury on this branch of the case, are full, fair and consistent, and in conformity with the law as above stated. Upon the defendant’s-request, the court expressly instructed the jury that in-determining the question of wager, they should consider all the facts and circumstances surrounding the transaction, and even in instructions given on plaintiff’s behalf, the court carefully avoided to give any conclusive effect to the written contract between the parties, so that the-instructions as a whole presented the issues very properly to the jury.

One complaint of the court’s action in charging the-' jury, is the refusal of instructions 4 and 5 asked by the defendant, which declare in substance, that if it was the intention of Shale to make a wagering contract, and Jones at the time of making the contract knew that such was the understanding of Shale, then such understanding of Shale was the understanding and agreement of both parties. The defendant maintains that the principle thus enunciated is sound in ethics and law, and that the instructions were supported by the facts disclosed by the evidence.

In the absence of fraud or mistake, the principle-thus stated is certainly not a correct, legal principle. That neither the one nor the other is claimed in the-present case nmst be apparent from the following statement of the facts, made by the defendant, while testifying in his own behalf :

“Q, I ask you if you and Mr. Jones talked over this contract and agreed on the terms and set down and wrote out the paper and signed it ? A. Yes, sir, that was the contract.

“ Q. You agreed to shell the corn in your mill % A. Yes, sir.

Q. And you agreed to deliver it at Clarence ? A. The corn was to be delivered in the cars, and it was to be my corn until it got to St. Louis. He was to ship it. The Hannibal & St. Joe Railroad charged me twelve dollars more per car.

“ Q. You never shipped options, it was corn bought in Clarence, you expected good corn to grow in that vicinity ? A. It was my impression when I made this contract.

“ Q. That there would be corn ? A. It was.

“ Q. You intended to buy corn to fill this contract if it was to be bought ? A. If I could buy it I would have delivered the corn in St. Louis just as agreed and he could have taken it. He could have said I didn’t want the corn and then I would have stopped.

“ Q. That was your intention ? A. Yes, sir.

“ Q. Then if corn could have been bought at or under forty-five cents, you would have delivered the corn? A. My intention was to deliver the corn.”

There is no error in the record warranting the reversal of the judgment.'

All the judges concurring,

it is affirmed.