Montgomery v. Gann

Ellison, J. Plaintiff sold to defendants four hundred and seventy-three and seventy-five-hundredths bushels of wheat at $1 per bushel, the wheat to be delivered by plaintiff on a car at Eaucett, a railroad [190] station. Plaintiff not receiving Ms pay sued defendants and recovered judgment, from which defendants ■appeal. Defendants’ answer was a general denial. The evidence shows that the wheat, which is involved in this transaction, was a specific lot of grain which was examined by defendants at the time they purchased. Under the issue made by defendants’ general denial, it was necessary for plaintiff to make out his case to prove the sale and also the delivery. Anything which would tend to disprove either of these things would tend to defeat what was necessary for plaintiff to show to maintain his case, and would, therefore, be admissible under a general denial. Guinotte v. Ridge, 46 Mo. App. 254, and cases cited. Defendants offered to show that the wheat they bought was good wheat — grade number 2, and that the wheat ■delivered in the car was “spoiled and damaged; was musty and worthless.” This was excluded by the court •as not being competent under a general denial. The ■defendants also offered to show that the spoiled or damaged wheat was delivered in the car by plaintiff by mistake; this was also excluded for the same reason. This testimony, if it had been admitted, would have had a tendency to prove that the wheat delivered was not the wheat which plaintiff examined and bargained for. Its tendency would, therefore, have been to defeat ■one of the requisites of plaintiff’s case, viz., a delivery ■of the specific lot of wheat which defendants purchased. It should, therefore, have been admitted. II. There was no money paid, nor was there any memorandum in writing of the transaction. But we ■do not perceive how the statute of frauds can cut any figure in the case, for if the wheat purchased was not •delivered there can be no recovery. And if the identical wheat purchased was delivered in the car (the place •defendants directed it to be delivered) then there was a [191] delivery sufficient under the statute, and plaintiff should recover, under the answer, whether the wheat was good or bad; and no matter how or when it became bad. III. If on retrial it should be shown that part of the wheat sold by plaintiff belonged to another, but that plaintiff was authorized to sell it, he may still sue for the price; the fact that he sold it in his own name, without disclosing his principal, will not affect the case. Keown v. Vogel, 25 Mo. App. 35. If, however, the property was that of another with no authority or right in plaintiff to dispose of it (and his unauthorized sale of it not ratified by the owner), he could not recover for the portion not owned by him. It is possible that, when all the evidence is heard, other questions may arise in the case. It may be that all the ideniical wheat examined and purchased by defendants was delivered where they directed it should be, and that other wheat, “spoiled and musty,” may have been mixed with it by plaintiff. What became of the wheat we are not informed. What was the duty of defendants as regards the wheat in the condition they allege they discovered it, and their duty in respect to the plaintiff, is not discussed by counsel nor considered by us, though it does appear that defendants notified plaintiff that they would not take the wheat. All these matters may develop at another trial. Judgment reversed and cause remanded. All concur.'