Famechon v. Devore

ROBERTSON, P. J. Plaintiff sued to recover damages for failure of defendant to accept a car of onions. A trial to the court resulted in a judgment for defendant from which plaintiff appeals. A finding of facts was made by the trial court to which neither side objects. The material part of the testimony is documentary and uncontradicted oral evidence, so that there are only conclusions of law to be drawn therefrom. The defendant ordered from plaintiff, a produce merchant at Minneapolis, 250 crates of a designated kind of onion and enough additional of another kind to make ‘ ‘ lightest minimum car. ’ ’ The car was loaded by a representative of plaintiff in Texas with 494 crates, an excess in weight of over 4000 pounds, and shipped to defendant at Springfield, Mo.- A draft was drawn on defendant and sent to a bank there with bill of lading, consigning the car to plaintiff, attached covering the value of the entire shipment and freight which the defendant was to pay. Before ordering the car defendant inquired of the railroad officials and learned that a minimum car was 24000 pounds, which .the plaintiff also well understood. When the car arrived he learned of its excessive load above the minimum and immediately telegraphed plaintiff: “Can’t use car of onions.” The plaintiff sought to have defendant state more explicitly his reasons for refusal, but failing, a few days later had him interviewed personally when defendant gave as his reason the excessive quantity. The plaintiff then offered to reduce [580] quantity and draft to the original order, but said nothing about the freight on the excess weight amounting to over $20. The defendant shipped the onions to Duluth and there sold them-at a loss which he now seeks to recover. The trial court gave good reasons for the judgment ; that the plaintiff: did not fulfill or offer to fulfill his contract, and that in offering to retake excess and reduce draft accordingly nothing was said about freight on the excess and hence, this was not an offer even then to comply with contract. “When the seller in filling an order sends more goods than the buyer has ordered, the buyer is under no legal obligation to accept any part of the goods.” [Lanesman v. Gumersell, 16 Mo. App. 459, 460 and Ruhl Clothing Co. v. Singleton, 161 Mo. App. 366, 371, 143 S. W. 529.] The defendant did not receive the shipment, hence it was not incumbent on him to offer to return it or to notify the plaintiff that he held the same subject to his order, because he did not. The only thing that can be said is that he might have been more explicit in his advice to the plaintiff that he would not accept the car, but the statement that he could not use the onions should have been as impressive on the plaintiff, who knew he had overloaded the car more than 4000 pounds, as if defendant had stated he would not use or accept same. The plaintiff testified as follows: “As far as the minimum between buyer and seller is concerned, there is a little liberality shown and we never have any objection given to a little over the minimum except when market conditions are weak and they wish to make that a technical excuse for rejection.” He, therefore, must have known that when the excess was so much more than “a little over the minimum” objections would be made. It is intimated by plaintiff that defendant’s real excuse for not accepting the shipment was on account of a declining market, but this might be suggested as a reason for plaintiff overloading the car. [581] Plaintiff agreed to ship a minimum ear and with this agreement he did not substantially comply in making the shipment, or in his subsequent efforts to adjust the matter. The.judgment is affirmed. Farrington, J., concurs. Sturgis, J,, dissents and files separate opinion.