Plymouth Cordage Co. v. Yeargain

BLAND, P. J. On February 12, 1898, the defendant gave to plaintiff the following written order: “Southwest City, Mo., 2-12, 1898 (290). “Plymouth Cordage Company, North Plymouth, Mass.: “I hereby purchase from you the binding twine described below, which please ship me on or before as ordered, 189 — , via St. L. and S. E. and K. C. P. and G. B. B., viz.: “No. bales 831. Bales 60 lbs. ea. Total pounds, 50,040. Plymouth Sisal, — (s), at 5 60-100 cts. per lb., net. “In event of failure of crop, this order may be reduced to meet the requirements of prospective trade. “.Deliver at Noel, Mo., for which I agree to pay Plymouth Cordage Company, cash, May 1, 1898, 4 per cent discount. [563] “Further agree to purchase from you all additional supplies of twine needed, at prices to be mutually agreed upon, and in the absence of such mutual agreement will settle for all additional supplies ordered from you during the season at your ruling market rates at time order is received by you. Any goods furnished under this agreement, and not settled for by cash or note as above specified, shall be subject to sight draft at any time after the days for payment above specified. The sale of the within named twine is made subject to contingencies arising from strikes, destruction of stock or factory, or other causes beyond the control of the seller. “Joe D. Yeargain. “Approved Feb. 23, 1898.” Which was duly received and approved by plaintiff on the following day. On April 27, 1898, plaintiff shipped to defendant one carload of twine of 417 bales said to weigh 25,020 pounds. On May 26, 1898, the plaintiff shipped to defendant a second carload of 417 bales said to weigh 25,020 pounds at the contract price of 5.60 cents per pound. The value of these shipments was $2,802.25. Defendant received the two shipments and paid thereon (including freight charges of $162.05), $2,647.68, leaving a balance of $154.56, to recover which this suit was brought. The answer alleged that defendant received but 47,280 pounds of twine and for a counterclaim alleged that plaintiff failed to comply with its contract to ship defendant 50,000 pounds as it had agreed to, by reason whereof defendant was damaged in the sum of $270 for which he asked judgment. The verdict of the jury is as follows: “We the jury find the issues in favor of the defendant on the counterclaim and assess his damages at one hundred dollars.”Judgment was rendered on the verdict, that “defendant recover of and from plaintiff the [564] sum of one hundred dollars and costs.” Plaintiff appealed. Plaintiff’s evidence is that at Plymouth, Massachusetts, on April 15, 1895, it loaded into a car (No. 68,241), four hundred bales of twine, and consigned it to its agents in St. Louis, Missouri. The car arrived in St. Louis in good condition with the seals intact. Plaintiff’s agents opened the car at St. Louis, put into it seventeen more bales of twine, had it sealed and consigned to defendant at Southwest City, where it arrived in good condition with seals unbroken and was received and unloaded by the defendant. In respect to the second shipment, the evidence is that it was also loaded at Plymouth with four hundred bales of twine and consigned to plaintiff’s agents at St. Louis. This car also arrived in St. Louis in good condition with the seals unbroken. At St. Louis it was opened and seventeen additional bales were put into it, when it was sealed and consigned to defendant. This car arrived at its destination in good condition and with the seals unbroken and was received and unloaded by the defendant. The defendant’s evidence is that he got but seven hundred and eighty-eight- bales of twine out of the two cars. The cars were unloaded at Southwest City. The defendant’s place of business, is at Noel on the opposite side of Cowskin river from Southwest City. Most of the twine was hauled from the cars to the defendant’s place of' business. The defendant counted the bales as they were unloaded by the teamsters and arrived at the total number by adding the number hauled to his store by wagon to the number he sold and delivered direct from the cars at Southwest City. While the last ear was standing on the sidetrack at Southwest City the river became unfordable for a day or so, and the car was eight or ten days on the track before all the twine was taken out, but was kept- locked until the last bale was removed. Defendant testified that the twine, at the time of delivery, was worth double what he agreed to pay [565] for it. ITis evidence shows a shortage of forty-six bales, and as the bales weighed sixty pounds each, there was then a shortage of 2,860 pounds, according to the count kept by the defendant. This shortage, under the evidence, would entitle him to recover on his counterclaim a sum in excess of the amount awarded him by the jury. One of the assignments of error is that the verdict is against the weight of the evidence; this may be true, but it furnishes no ground for reversal. Chouquette v. Ry. Co., 152 Mo. 257; Hays v. Merkle, 78 Mo. App. 383; Huth v. Dale, 76 Mo. App. 671; Tower v. Paul, 76 Mo. App. 287; Parsons v. Mayfield, 73 Mo. App. 309. The giving and the refusal to give instructions is assigned as error. In what the error complained of consists is not stated or pointed out. Those given are consistent with each other and correctly stated the law of the case; those refused are hypothecated on the theory that under the contract, the twine was delivered when locked into the cars at St. Louis. Southwest City is named as the place of delivery by the contract and the instructions were properly refused. One of the grounds assigned in the motion in arrest of judgment is that the verdict is not responsive to the issues made by. the pleadings. The overruling of this motion is assigned as. error. The contention is, the allegations of the petition are not disposed of by the verdict. The verdict does not in terms find against the plaintiff’s cause of action, but does so find by necessary implication. Taylor v. Short, 38 Mo. App. 21; Hackworth v. Zeitinger, 48 Mo. App. 32; Pope v. Ramsey, 78 Mo. App. 157. No doubt can arise from the verdict that the jury intended to' find against the plaintiff and for the defendant. Verdicts are not required to be in any particular form; they are required to be certain and respond to all the issues. When these requirements are met, the verdict is sufficient, however informal or crude may be the language in [566] which tbe verdict is couched. The Provo Mfg. Co. v. Severance, 57 Mo. App. 260. Discovering no reversible error in the record the judgment is affirmed. All concur.