Midland Elevator Co. v. Cleary & Hamilton

Smith, P. J. This action is founded on a joint written contract, dated July 30, 1891, whereby the defendants agreed to sell the plaintiff six thousand bushels [301] of wheat at seventy-six cents per bushel, if No. 2, and seventy-three cents, if No. 3, to be delivered at Norborne within fifteen days. The defense interposed by the answer was that the defendants within the time and at the place required by the terms of the contract tendered the plaintiff the quantity and kind of wheat called for by the contract which plaintiff refused to receive. There was a trial in which plaintiff had judgment, and defendants appealed. to inspection of wheaf: appellate and trial prac- The defendants by their appeal question the judgment on the ground that plaintiff violated its contract when its agent sent a sample of defendants’ wheat to Kansas City to be graded, since the same was to be graded at Norborne. it is a sul- . . .. . . .. . ficient answer to this contention to say that it is disclosed by the undisputed evidence that the defendants consented to this act of the-plaintiff’s agent and therefore can not be heard to make any complaint on that account. Besides this, the defendants raised no such defense in the trial court either by objection to evidence, instruction or motion. This theory of the defense is for the first time suggested here, but it can not be considered since it is a well settled rule of appellate court practice in cases brought to such courts by appeal or writ of error that they will be restricted in their examination to the theory on which such cases were determined in the trial court. A case of this kind can not be determined by us on a theory different from that on which it was determined in the trial court: Helling v. U. O. of H., 29 Mo. App. 309; Mantz v. Maguire, 52 Mo. App. 136; Querback v. Arnold, 55 Mo. App. 286; Scott v. Nevada, 56 Mo. App. 189; Randolph v. Frick, 57 Mo. App. 400; McManus v. Watkins, 55 Mo. App. 92; Hubbard v. Quisnberry, 32 Mo. App. 459. [302] At&e“praerrappean mstruc- 'The defendants object that the trial court erred in its action giving the plaintiff’s instruction number 2. When this case was here on a former appeal —56 Mo. App. 272 — this instruction was considered and approved and its correctness is therefore not open to question on this appeal. Stilwell v. Glasscock, 47 Mo. App. 554; Senate v. Railroad, 57 Mo. App. 223; Nelson v. Wallace, 57 Mo. App. 397. ^£s?™ctio£n The court at the request of defendants gave six instructions which submitted to the consideration of the jury every conceivable defense to which defendants had any right to make. The fifth of these was that: “If the jury find from the evidence that on the morning of August 13, 1891, the defendant Oleary drove to the office of plaintiff in Norborne, Missouri, with a load of the wheat which he claimed to be No. 2 and offered to deliver the same to plaintiff and requested plaintiff to examine and inspect same and that plaintiff’s agent, Market, refused to examine or inspect same and refused to accept any of said wheat unless it was delivered as No. 3, then they will find for defendants.” This instruction the court modified by interpolating therein after the name “Market” the word “wrongfully.” This the defendants insist was error, but such insistence can not be upheld as will be seen by reference to what was said by us on the former appeal in the case. The word “wrongful” is not a technical word or a term of art nor was it so used in the defendants’ instruction. It was. used in its common and ordinary sense and its meaning, it is fair to presume, may be well understood by any person who is competent under the statute to serve on a jury. No definition was required in such case. But if the word should have been defined by the court but was not, this constituted no [303] ground for a disturbance of the judgment. Warder v. Henry, 117 Mo. 545; Cottrill v. Krum, 100 Mo. 397; Muehlhausen v. Railway, 91 Mo. 333. contracts: no. and No. 3 wheat: modification of Defendants further complain of the action of the court modifying their fifth instruction which was, as modified, as follows: “If the jury find from the evidence that on the morning of August 1891, the defendant Cleary drove to ' ' * the office of plaintiff in Norborne, Missouri, with a load of the wheat which he claimed to be No. 2, and offered to deliver the same to plaintiff and requested plaintiff to examine and inspect same and that plaintiff’s agent Market refused to accept any of said wheat unless it was all delivered as No. 3, then they will find for defendants, provided you further find that said wheat was in fact No. 2 wheat.” The italicised words indicate the modification. This instruction as modified is most manifestly correct in its enunciation. If the wheat was, as a matter of fact, No. 2, then plaintiff had no right to refuse an acceptance of it exceptas No. 3, and this is' what the instruction as we understand it declared when modified. Trial practice: fivingand reusing instructions : fair submission. No substantial conflict is perceived between the plaintiff’s first instruction and the first, fifth and sixth of the defendants. These instructions differ somewhat in the form of expression but not in thought. They plainly told the jury that if the defendants’ tender of the wheat was accompanied with a demand that it be accepted as No. 2 to find for plaintiff unless it was in 2, or, in other words, if the wheat tendered as No. 2 was in fact No. 3 that there was no binding tender. Nor is any error perceived in the action of the court in refusing defendants’ seventh, eighth and ninth. The instructions given for both fact No. [304] plaintiff and defendants, when taken in their entirety, submit every phase of the case to the consideration of the jury. The theory of the defendants’ seventh was in effect the same as that of' their fifth and sixth. There was no evidence offered to justify the giving of the defendants’ eighth, and the same remark is applicable to their ninth. Their sixth correctly asserts a proposition which is incorrectly asserted in their seventh, eighth and ninth. The case was fully and fairly submitted to the jury by the instructions and therefore the verdict, is conclusive on us. The judgment must be affirmed.- All concur.