Hyatt Coal Co. v. Apperson

Missouri Court of Appeals

Hyatt Coal Co. v. Apperson

97 S.W. 604, 121 Mo. App. 592, 1906 Mo. App. LEXIS 505

DecidedNovember 19, 1906

StatusPublished

This text of 97 S.W. 604 (Hyatt Coal Co. v. Apperson) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hyatt Coal Co. v. Apperson, 97 S.W. 604, 121 Mo. App. 592, 1906 Mo. App. LEXIS 505 (Mo. Ct. App. 1906).

Pincite

Opinion

ELLISON, J.

Plaintiff’s action, begun before a justice of the peace, is for coal sold and delivered to defendant. Defendant filed a counterclaim whereby he claimed a shortage in weights. On a trial in the circuit court, where the cause had been taken by appeal, defendant obtained a verdict on his counterclaim and plaintiff has brought the case here.

We cannot find anything in the record which would authorize or justify us in interfering with the result reached in the trial court. Plaintiff, who is a wholesale dealer, contended that defendant, who is a retail dealer, bought the coal under a custom existing in the city of St. Joseph tc buy and sell coal in carload lots by weights at the coal mine. Plaintiff further contended that he and defendant had a settlement of the account up to a certain date. The evidence in defendant’s behalf tended to support the amount of his counterclaim and also to support his claim that lie did not purchase under any custom, but bought by the ton. It further tended to show that the weights being discovered to be short from time to time, he notified plaintiff and received assurances that it would be made good.

On the question of settlement between the parties the clear inference from defendant’s evidence is that while what is termed a settlement was had it did not include the short weights, as defendant was yet continuing in business and receiving assurances that the weights would be made good. Evidently what is termed a settlement was merely a payment on account up to the date of payment.

There was no peremptory instruction asked and all instructions requested by plaintiff were given. They included the question of custom and of settlement. The [595]*595jury bave found the facts for the defendant and the record discloses that such finding has evidence to support it; we therefore affirm the judgment.

All concur.

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ELLISON, J.

Plaintiff’s action, begun before a justice of the peace, is for coal sold and delivered to defendant. Defendant filed a counterclaim whereby he claimed a shortage in weights. On a trial in the circuit court, where the cause had been taken by appeal, defendant obtained a verdict on his counterclaim and plaintiff has brought the case here.

We cannot find anything in the record which would authorize or justify us in interfering with the result reached in the trial court. Plaintiff, who is a wholesale dealer, contended that defendant, who is a retail dealer, bought the coal under a custom existing in the city of St. Joseph tc buy and sell coal in carload lots by weights at the coal mine. Plaintiff further contended that he and defendant had a settlement of the account up to a certain date. The evidence in defendant’s behalf tended to support the amount of his counterclaim and also to support his claim that lie did not purchase under any custom, but bought by the ton. It further tended to show that the weights being discovered to be short from time to time, he notified plaintiff and received assurances that it would be made good.

On the question of settlement between the parties the clear inference from defendant’s evidence is that while what is termed a settlement was had it did not include the short weights, as defendant was yet continuing in business and receiving assurances that the weights would be made good. Evidently what is termed a settlement was merely a payment on account up to the date of payment.

There was no peremptory instruction asked and all instructions requested by plaintiff were given. They included the question of custom and of settlement. The [595]*595jury bave found the facts for the defendant and the record discloses that such finding has evidence to support it; we therefore affirm the judgment.

All concur.

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Bluebook (online)

97 S.W. 604, 121 Mo. App. 592, 1906 Mo. App. LEXIS 505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hyatt-coal-co-v-apperson-moctapp-1906.