Morris v. Occident Elevator Co.

Christianson, J. In December, 1911, the plaintiff delivered to the defendant at its elevator at Sykeston, North Dakota, 1,130 bushels and 50 pounds of flaxseed. It is conceded that the plaintiff did not receive payment for 48f bushels of flax so delivered. The dispute arises over the terms of the oral agreement under which the flax was delivered. The plaintiff contends that the flax was delivered to the-defendant under a contract of purchase and sale, and that the defendant purchased said flax, and agreed to pay plaintiff therefor the price per bushel that said flax would sell for in the market at Minneapolis, less the freight charges, inspection, storage, and commission. The defendant admits that it received the quantity of flax in question, but “denies, that said flax was delivered to this defendant under a contract whereby defendant agreed to buy said flax, but alleges that said flax was delivered to this defendant by plaintiff under contract whereby defendant agreed to handle said flax for plaintiff by running said flax through the elevator and loading it on car to be transported to Minneapolis, thereto be sold by said defendant as commission merchants for said plaintiff.” The case was tried to a jury and resulted in a verdict in plaintiff’s favor in the sum of $89.30, with interest at 7 per cent from December 26, 1911. Judgment was entered pursuant to this verdict,, and defendant appeals from the judgment and the order denying its motion for a new trial. Appellant assails the sufficiency of plaintiff’s complaint, and asserts that it is too uncertain and indefinite, and alleges neither a sale nor a contract to sell, and also fails to allege facts sufficient to show that plaintiff is entitled to recover from defendant as his agent or broker. No demurrer was interposed. Nor did defendant ask that the complaint be made more certain and definite. The complaint was assailed for the first time upon the trial by an objection to the introduction. [451] of any evidence thereunder. This court has repeatedly held that a complaint challenged by such objection will be liberally construed and sustained if it is reasonably possible to do so. The complaint was somewhat vague, and there was some room for doubt as to whether it intended to charge a contract of sale or a contract of brokerage. If construed as charging a contract of brokerage or agency, it did not state a cause of action; but, if construed as charging a contract of sale, it stated a cause of action. The trial court properly adopted the construction which would sustain the pleading. On cross-examination of plaintiff, defendant’s counsel offered certain documentary evidence for the avowed purpose of showing that the agreement between plaintiff and defendant was not a contract of sale, but merely an agreement whereby defendant agreed to act as plaintiff’s agent in disposing of the flax. In ruling on and sustaining the objection interposed to this evidence by plaintiff’s counsel, the court said: “There is a general denial filed here to this complaint. The plaintiff claims the sale was made at the point of shipment. Of course, on that theory of the case it would not be material.” Defendant asserts that this ruling was erroneous, and that such evidence was admissible under a general denial. It is unnecessary for us to consider the correctness of the ruling as the question is not before us. The record shows that immediately following such ruling, defendant’s counsel asked for and obtained leave to amend the answer by setting up as a special defense that the defendant did not buy the flax from the plaintiff, but merely agreed to handle it for him as his agent. The answer was amended accordingly, and the trial proceeded upon the issues as framed by the amended answer. By acquiescing in the ruling and amending the answer in conformity therewith, defendant waived the error, if any. (Comp. Laws 1913, § 1250.) And as defendant was permitted to introduce, and did introduce, the evidence in question under the amended answer, it is obvious that it could not possibly be prejudiced by its exclusion under the former ruling. We are, also, satisfied that there is no merit in appellant’s assignments of error assailing the sufficiency of the complaint. As already stated, such question was first raised by a general objection upon the trial. Defendant’s counsel acquiesced in the construction placed upon the complaint by the trial court, and amended the answer to conform [452] to said ruling; and the allegations in the amended answer, portions of which we have quoted above, were formulated on the theory that plaintiff’s complaint alleged a contract of sale. The case was tried in the court below on this theory. No objection was made by defendant’s counsel to the introduction of any of the evidence offered by plaintiff on the ground of variance. Under these circumstances it seems self-evident that defendant is in no position at this time to attack the complaint on the grounds that it is uncertain or indefinite, or that the evidence offered and received was variant therefrom. Appellant also challenges the sufficiency of the evidence to sustain the verdict. This question was raised in the trial court both by motion for a directed verdict and by an alternative motion for judgment notwithstanding the verdict or a new trial. It is conceded that neither the complaint nor the proof justified a recovery against defendant as a broker, but that plaintiff must recover, if at all, upon a contract of sale. The question, therefore, is whether there is any substantial evidence tending to establish such contract. The plaintiff had the affirmative of the issue, and the burden was on him “to prove the existence and validity of the contract of sale, and the terms thereof, the price or value, the delivery and acceptance of the goods and the amount thereof, and his compliance with the contract, or a waiver of its provision by the buyer.” 35 Cyc. 561. See also Starke v. Stewart, ante, 359, 157 N. W. 302. The alleged contract rested in parol, and plaintiff in his direct examination testified in regard thereto as follows : Q. Now, you may state what was said between yourself and the agent, Mr. Haven, with reference to this flax, what was done? A. He was to put it in the cars and ship it to the Occident Elevator Company, run it through the house at 1 cent per bushel, he shipped it to the Occident Elevator Company, and I was to have,— Q. Did you deliver the flax to the company there? A. Yes, sir. Q. Now, with reference to fixing the place, state whether or not you sold the flax to the elevator company at that time ? Mr. Merrell: Objected to as calling for a conclusion. The Court: Overruled; calls for a conclusion of fact. [453] A. I considered it virtually a sale; I was to pay the freight. Q. Was you to pay the freight, Mr. Morris; just give us what the agreement was? A. I was to get the net price less the freight, 1 cent for running it through the house,— Q. Now state,— A. The commission charges. Q. Proceed? A. And what other incidental expenses that might be incurred. Q. Now, in that oral talk that you had there, they were to pay you the Minneapolis price, market price for this grain ? A. Less these expenses. Q. Less these expenses? A. Yes, sir. Q. Now, you may give the expenses ? A. Well, it was for putting it through the house. ■ Q. How much was that ? A. One cent per bushel. Q. What else ? A. The freight expenses, 13 cents per hundred, I think. Q. Prom Sykeston to Minneapolis ? A. Prom Sykeston to Minneapolis; the commission for selling. Q. And the commission? A. And what other, other few little incidental expenses. The defendant’s agent denied absolutely that he purchased the fláx, and asserted that he merely agreed to handle the same and sell it for the plaintiff and account to him for the proceeds thereof. It is true, defendant’s agent consigned the shipment as a shipment from defendant at Sykeston to itself at Minneapolis, but.it is also true that defendant’s agent sent the bill of lading for the car to the plaintiff, and the evidence, also, tends to show that the plaintiff toolj: this bill of lading to a bank and drew a sight draft against the defendant for $1,500, and that defendant paid such draft and received the bill of lading. Plaintiff’s own testimony tends to establish a brokerage contract, rather than a sale. In our opinion there is no substantial evidence tending to establish [454] the fact that plaintiff sold the flax to defendant. The judgment and order are therefore reversed, and the cause is remanded with directions that the trial court dismiss the action.