Citizens' Independent Mill & Elevator Co. v. Perkins , 52 Okla. 242 ( 1915 )

There are very many assignments of error in this case; but, for a proper determination of same, we think it necessary to consider only those facts found and the judgment rendered, as set out above.

The undisputed evidence, the contract of purchase, provided that the corn was bought subject to inspection at Wichita, and a certificate which accompanied the bill of lading shows that such inspection was made at Wichita, and that said inspection showed that the corn was of the grade contracted for. But the inspection provided by the contract was made at Wichita, and it was entirely immaterial, so far as the liability of defendant is concerned, what the condition of the corn was upon its arrival at Weatherford; there being no evidence tending to show that any fraud was practiced at the instance of defendant or otherwise, as to the inspection at Wichita.

The trial court declared that the contract was for a sale on inspection at Wichita, and we think no other conclusion was possible under the evidence. This contract is legal, and ought to be upheld. Courts cannot make contracts for parties; they can only construe them. A contract making the decision of one party conclusive is valid and binding. Williams v. Railway, 153 Mo. 487, 54 S.W. 689; Beck Corbitt Iron Co. v. Hollbeck, 109 Mo. App. 179, 82 S.W. 1128.

It will thus be seen that the parties agreed to submit this question to a decision of the inspector, appointed by defendant. His decision, under such circumstances, was final and conclusive, unless fraud be shown, and such fraud must have been participated in by defendant. In other words, the fraud must have been the result of collusion between defendant and the inspector appointed by him.

In Gorman v. Dallas, C. S.W. Ry. Co. (Tex. Civ. App.), 106 S.W. 930, it is held:

"Where a contract of sale provides that the materials shall be inspected by a specified person at the buyer's cost, the inspector is the agent of both parties, and his inspection is conclusive on them, in the absence of bad faith therein."

In Gratiot Street Warehouse Co. v. Wilkinson et al., 94 Mo. App. 528, 68 S.W. 581, it is held:

"Where corn is purchased as of a certain grade and quality, according to official inspection, at the place of shipment, such inspection, in the absence of anything to impeach it as dishonest or collusive, is conclusive as to the grade and quality shipped to the purchaser."

In said case, supra, it is further held:

"In an action against a grain dealer for breach of contract in refusing to receive corn purchased by him of a certain grade, according to official inspection at the place of shipment, the question as to when the title passed is immaterial, defendant being obliged to receive it, regardless of its condition when it reached him, if the official inspection showed that it was of the grade ordered when placed on the cars."

Many errors are assigned as to the admission and rejection of evidence; but, under the view we have expressed, we deem it unnecessary to review same, especially in view of the fact that the case was tried to the court, and upon the whole record it appears that the correct conclusion was reached. Bronaugh v.Pratt, 46 Okla. 303, 148 P. 1044. Certainly there was sufficient evidence to support the judgment rendered.

The rule is well established in this jurisdiction that where a case is tried to the court without a jury, a general finding of the court in favor of one of the parties will be given the same weight as the verdict of a jury; and if there is evidence reasonably tending to support such finding, the same will not be disturbed on appeal. Bretch Bros. v. Winston, 28 Okla. 625,115 P. 795; Furstenburg v. Brissey, 28 Okla. 591,115 P. 465; Edgar Grain Co. v. Kolp, 48 Okla. 92, 149 P. 1096.

Finding no error in the record requiring a reversal of the cause, the judgment of the trial court should be affirmed.

By the Court: It is so ordered.