Wilson v. Moran

This is an appeal from the district court of Mayes county, Hon. Preston S. Davis, Judge.

On February 8, 1917, George Moran, as plaintiff, commenced this action against the defendant, James S. Wilson, to recover damages in the sum of $1,900.12, for the failure of the defendant to accept four car loads of blue grass seed, shipped by the plaintiff from King City, Mo., to the defendant at Paris, Ky.

The cause was tried to the court and jury and resulted in a verdict in favor of the plaintiff for the sum of $1,530.49, from which judgment the defendant has regularly appealed to this court.

For convenience, the parties will hereinafter be referred to as plaintiff and defendant, respectively, as they appeared in the trial court.

The plaintiff alleged in his petition that on or about the 15th day of July, 1916, he sold to the defendant his holding of stripped blue grass seed then on hand in his warehouse in King City, Missouri, the same being 4,721 2-9 bushels, at an agreed price of 90 cents per bushel, to be thereafter shipped to the defendant at Paris, Ky., amounting in the aggregate to the sum of $4,249.10, when the same was loaded on the cars; that the shipment went forward with draft attached to shipper's order, notify, bills of lading; that the defendant refused to accept and pay for same on arrival at Paris, Ky., and that after several days delay the same was returned to the plaintiff to King City, Mo., unloaded by him, and placed in his warehouse; and that by reason of the defendant's failure to accept the same as per contract the plaintiff was compelled to pay freight on the outbound and inbound movements of the shipment in the sum of $529.22 each, and $106 demurrage, and expense of unloading the seed of $27.50, and suffered loss on account of the decline in the market in the sum of 15 cents per bushel, amounting to $708.18.

At the close of the evidence the plaintiff, on application to the court, was permitted to amend his petition to conform to the proof by striking out the item of $708.18, caused by the decline in the market, and in lieu thereof alleged damages for insurance paid, $35; for expense in loading the said seed when resold, $27.50; and for rent of warehouse for five and a half months, $75.00; decline in market of 5 cents per bushel, aggregating $215; making the total amount of damages claimed $1,545.49, instead of $1,900.12, the amount claimed in his original petition.

The defendant's answer consisted of a general denial, except in so far as allegations "are hereinafter admitted," and for a further defense alleged a breach of warranty of the quality of the seed sold. This part of defendant's answer is quite voluminous, the essential portions of which are as follows:

"The defendant for further answer states that before and at the time the defendant and plaintiff undertook to enter into the verbal agreement for the sale of said blue grass seed by the plaintiff to the defendant at 90 cents per bushel, the said seed was (with the exception of 400 or 500 bushels hereinafter mentioned), stored in bulk in a section of plaintiff's warehouse at King City, Missouri, and that the said bulk of seed extended up and into the rafters at the top of the said section of said warehouse and that the only opportunity the defendant had of examining said seed was such examination as he could and did by climbing a ladder on the outside and going to the top of said warehouse and looking down on the top of said seed and that he could only see to examine what was on top, or within arm's reach from the top, and defendant states that because of the impracticability of making any other examination of said seed, the plaintiff, in order to induce the defendant to enter into said contract, stated and represented to the defendant that all of said seed was of the same kind, character and quality as the portion he could and did inspect from the top of said warehouse, saving and excepting 500 to 700 bushels which the plaintiff represented was all of the seed that was inferior to the seed at the top of said warehouse and which the defendant could and did inspect, and the plaintiff represented that the said inferior quality was at or near the bottom of said section of said warehouse."

He further alleged, in substance, the arrival of the seed at Paris, Ky., and his examination thereof, and that he discovered that the said seed was not as represented by the plaintiff, and his notifying the plaintiff that he would not accept the same, and concluded his answer with the following allegation:

"The defendant thereupon refused to accept or receive said seed and notified the plaintiff that he refused to accept or receive said seed and that the defendant refused to pay for said seed because of the plaintiff's said prior breach of said contract, and refused to honor or pay the draft mentioned in the petition for purchase money of said seed because of plaintiff's prior breach of said contract, and that on account of the defendant's refusal to receive or accept said seed the plaintiff reshipped said seed to King City, Missouri, as stated in the petition."

To this answer the plaintiff filed a reply, denying generally and specifically all the material allegations of the defendant's answer pleading a breach of warranty.

Soon after the commencement of the trial, and after counsel for plaintiff and defendant, respectively, had made their opening statements, which statements are not included in the record, the court announced "that the burden of proof in this case is upon the defendant, and that he shall, therefore, produce his evidence first and shall have the opening and closing of the argument in this case." To this action of the court the defendant excepted.

The defendant's assignments of error are as follows:

1. "The court erred in holding that the burden of proof was upon the defendant."

2. "The court erred in overruling defendant's demurrer to plaintiff's evidence."

3. "The court erred in excluding competent evidence offered by defendant."

4. "The court erred in giving to the jury instructions Nos. 2, 4, 5, 6, 8, 9, 10, 11, 14, and 16."

5. "The court erred in refusing to give instructions Nos. 1, 2, 3, and 4, requested by defendant."

6. "The court erred in permitting plaintiff to amend his petition, at the close of all the testimony and after the witnesses had been discharged from the rule."

7. "The court erred in overruling defendant's motion for a continuance after the petition was amended."

8. "The verdict of the jury is not supported by the evidence."

9. "The court erred in overruling defendant's motion for a new trial."

Counsel for defendant first argue in their brief the first assignment of error, which is that "the court erred in holding that the burden of proof was upon the defendant."

Revised Laws 1910, sec. 5002, is as follows:

"When the jury has been sworn, the trial shall proceed in the following order, unless the court for special reasons otherwise directs: First. The party on whom rests the burden of the issues may briefly state his case, and the evidence by which he expects to sustain it. Second. The adverse party may then briefly state his defense, and the evidence he expects to offer in support of it. Third. The party on whom rests the burden of the issues must first produce his evidence; after he has closed his evidence, the adverse party may interpose and file a demurrer thereto, upon the ground that no cause of action or defense is proved. If the court shall sustain the demurrer, such judgment shall be rendered for the party demurring as the state of the pleadings or the proof shall demand. If the demurrer be overruled, the adverse party will then produce his evidence."

In the case of Gower et al. v. Short, 36 Okla. 30,127 P. 485, in syllabus paragraph 3 of the opinion, this court said:

"The question of the mere order in which proof is introduced at a trial rests very much within the sound discretion of the trial court; and unless it clearly appears that this discretion has been abused, to the injury of the complaining party, a reversal will not be ordered on this ground."

To the same effect, Standifer et al. v. Sullivan,30 Okla. 365, 120 P. 624.

From an examination of the entire record, it is clear to us that the trial court did not abuse its discretion in directing the defendant to proceed first with the introduction of his evidence, and equally so that the trial court properly held that the burden of proof was upon the defendant. There was no contention made at the trial that the plaintiff failed to comply with the terms of his contract in the shipment of the said seed; nor that the price of 90 cents per bushel was not agreed upon; nor that the said seed failed to arrive at its destination in proper time; nor that the amount of the draft was in excess of the quantity of the seed sold; nor that the defendant refused to accept the seed; nor that he returned it to said plaintiff. The contentions of the defendant were that all of the seed was warranted to be of the same kind and character as that he inspected upon the top of the pile in the warehouse, and that he examined the seed on its arrival at Paris, Ky., and that the seed did not come up to the warranty, and that he therefore, and for that reason alone, refused to accept and pay for it; and all of the defendant's testimony, which was for the most part his own evidence, was in support of these contentions of his, and gave no excuse for his refusal to accept and pay for the seed except that it was not up to warranty.

In these circumstances we think it is clear that the court was correct in its holding that the burden of proof was upon the defendant, and granting him at the commencement of the trial the benefit of opening and closing the case.

The next assignment of error argued by the counsel for the defendant is, "the court erred in overruling defendant's demurrer to plaintiff's evidence." There is no merit in this contention. The plaintiff testified that the defendant had ample facilities for examining the seed at the time of the purchase and that he did so; that the defendant did not go up on a ladder to examine the said seed and only examined the top of the pile, but, upon the contrary, the plaintiff testified that he opened the warehouse door, which was 10x10 feet, and that the top of the pile of seed was only six feet high, and that the door was boarded up to that distance only, leaving four feet above the boards from the top of the pile of seed to the joist in the warehouse, and that the defendant entered the warehouse at the door, climbed up on top of the pile, examined the seed thoroughly, took a pitchfork and dug deep holes down into the seed at different places, going down into the holes and pulling out samples from the sides thereof, and examined the seed thoroughly, and that no request was made for a warranty of the seed, and that no warranty was made by him; that the defendant thoroughly inspected the seed at the time of the purchase; that the same was of the same quality and character throughout the warehouse as that on top of the pile, except perhaps some at the bottom in a certain part of the warehouse, which was of an inferior grade, and that the defendant was fully advised by the plaintiff at the time as to that; that he shipped the seed to the defendant in the way and manner agreed upon; that the defendant refused to accept it, and that he was compelled to pay the freight both ways and the demurrage and for unloading the same; that in February, when he sold the seed, he shipped it to Hall Bros., in Jacksonville, III., and that he paid the item of insurance, lost the use of his warehouse for four and a half months, and that the same was reasonably worth the rental of $15 per month, and that he sold the seed to Hall Bros. at 85 cents per bushel, losing at the rate of 5 cents per bushel on account of the defendant's failure to receive it at the purchase price of 90 cents per bushel, the aggregate amount of these items being the exact amount of the verdict returned by the jury.

As to the quality of the seed in the warehouse that the defendant examined and bought, the plaintiff introduced as witnesses every employe that handled the seed from the time it was mowed to the time it was shipped to Hall Bros. (it was sacked three times and unsacked twice); they all testified that the seed throughout was of the same quality and in the same condition as the kind of seed that the plaintiff alleged he sold to the defendant.

In these circumstances it cannot be maintained that a demurrer to the plaintiff's evidence should have been sustained. The trial court properly overruled the same.

The 3rd assignment of error argued is that the court erred in refusing to give instructions Nos. 1, 2, 3, and 4, requested by the defendant. There is no merit in this contention. We have examined the instructions 1 and 2, being upon the question of warranty, which was fully and clearly covered by the court in his general charge to the jury. The requested instruction No. 3 went to the question of the plaintiff shipping to the defendant other and different seed than that which was owned by the plaintiff at the time of the alleged purchase and which was in the warehouse. That was not the issue in the case. No such contention was made by the defendant, and the plaintiff's testimony was full, clear, and explicit that he shipped the identical seed that the defendant inspected and purchased, and there was no evidence to dispute it. The 4th went to the proposition that if the defendant and his witnesses violated the law of the state of Kentucky in breaking open the cars and taking seed therefrom, that had nothing to do with this lawsuit. Nobody ever seriously contended that they committed a crime, that they broke into the car, or that such action in any way affected the rights of the parties to this lawsuit, and nothing upon that question should have been submitted to the jury, and the court did not submit the same. The court properly refused this requested instruction.

Counsel next argue specification 4, which is that the court erred in giving the jury instructions Nos. 2, 4, 5, 6, 8, 9, 10, 11, 14, and 16. We have examined these instructions, and find that they respectively contain a substantially correct statement of the law upon the different phases of the case, and that they are not subject to the criticisms of counsel.

Counsel next argue specification 5, error of the court in giving instruction No. 5, which was upon the question of how a contract may be rescinded, and copied practically verbatim the provisions of the statutes of this state. There was no error in this instruction.

Counsel next argue specification 6, error of the court in giving instruction No. 16, which was upon the measure of damages, and in which was likewise copied the statutory provision for the breach of an obligation arising from contract, stating what the measure of damages should be, etc. In this there was no error.

The defendant's other assignments of error have not been argued in the brief, and were therefore waived, and will not be considered.

We have carefully examined the entire record, and are clearly of the opinion that the verdict of the jury is supported by competent evidence, and that there is no prejudicial error of law shown in the record, and that the defendant had a fair and impartial trial, and that this case comes squarely within the rule announced by this court in the following cases: McCoy v. Wosika, 75 Okla. 3, 180 P. 967; Bunker v. Harding et al., 70 Oklahoma, 174 P. 749; Blasdel et al. v. Gower, 70 Oklahoma,173 P. 644; Shawnee Nat. Bank v. Pool, 66 Oklahoma,167 P. 994; C., R.I. P. R. Co. v. Pruitt, 67 Oklahoma,170 P. 1143 — that in a law action tried to a jury this court will not weigh the evidence on appeal, but where there is any evidence reasonably tending to support the verdict and the record presents no reversible error of law occurring during the trial, the verdict of the jury and the judgment of the court thereon will not be disturbed.

The judgment of the trial court is therefore affirmed.

KANE, PITCHFORD, MILLER, and NICHOLSON, JJ., concur; HARRISON, C. J., and McNEILL, ELTING, and KENNAMER, JJ., dissent.