majority">REYNOLDS, P. J.

— This action was commenced before a justice of the peace in Lewis county and a statement in the form of a petition there filed by plaintiff, setting out that on a day named defendant contracted and agreed to purchase from plaintiff and did purchase from him a lot of wheat and oat straw, to be baled by plaintiff and delivered by him to defendant at the town of Canton, at the price of three dollars and twenty-five cents per ton if delivered on the banks of the Mississippi river, or three dollars and fifty cents per ton if delivered in cars or on barges on the bank of the river. Plaintiff avers that under this agreement he baled 118 tons and 765 pounds, of which he delivered about fifty tons to defendant which defendant received and paid for; that he had baled the remainder, consisting of sixty-eight tons and 765 pounds, and was ready to be delivered to defendant but defendant, after putting him off from time to time, finally refused to- ac*510cept it, although plaintiff has at all times been ready and willing to deliver the same at the price agreed upon. Wherefore he claims defendant is indebted to him for the contract price $205.12%, for which he asks judgment with interest and costs.

It appears that defendant recovered before the justice whereupon plaintiff appealed to the circuit court, where on a trial anew before the court and a jury, the jury returned a verdict for plaintiff in the sum of $187.91. From this, filing a motion for new trial and one in arrest, and saving exceptions to these motions being overruled, defendant has duly perfected his appeal to this court.

There are six errors assigned here by appellant. First, to error in overruling the motion for new trial. Second, to error in giving instruction No. 1 asked by plaintiff. Third, fourth and fifth, to error of the court in refusing three instructions asked by defendant, and sixth to the error of the court in admitting improper evidence over the objections of defendant.

It will be observed by the statement or petition that plaintiff, claiming to have made a sale and tendered the articles sold and averring the refusal of defendant to accept a large part of these articles, that is baled straw, claims that defendant is liable to him for the contract price. That is to say, plaintiff, averring performance of the contract and completion and tender of the articles contracted for and failure to receive and pay for these, has elected one of the three remedies to which the vendor is entitled on a breach of a contract of sale of personal goods. That he had a right to do this is clear. The decisions sustaining that right have so recently been fully gone over by this court in Koenig v. Truscott Boat Mfg. Co., 155 Mo. App. 685, 135 S. W. 514, that it is unnecessary to go into a discussion of the proposition. Plaintiff in this case, respondent here, as did the defendant and respondent in Koenig v. Truscott Boat Mfg. Co., supra,*511lias elected to sue for the contract price. He was entitled to recover that provided the evidence showed the contract, performance by plaintiff and refusal by defendant to pay the price. We have read all the evidence as abstracted by counsel for both sides and have no hestitation in saying that the verdict arrived at by the jury is sustained by substantial testimony.

The amount of recovery is within the second instruction given by the court at the instance of plaintiff and which learned counsel for appellant have apparently overlooked. By the first instruction which the court gave at the instance of plaintiff, after advising the jury that it was necessary to find the contract and its performance by plaintiff and refusal to accept the straw by defendant, and that plaintiff was ready, willing and able to deliver the straw, the court told the jury that if they found for plaintiff they should allow such sum per ton for such number of tons as defendant had agreed to buy and pay for, less the number of tons he had received and paid for, if the jury found and believed that plaintiff had the straw baled and was ready, willing and able to deliver to defendant at the place specified. The second instruction told the jury that if they should find from the greater weight of evidence that defendant purchased the straw and received and paid for part of it and thereafter put the plaintiff off from time to time in regard to receiving the balance of the straw and finally refused to receive it, in that event they would find for plaintiff, provided they also found that plaintiff had the straw baled and had it at such point that he could have delivered it and that he was ready, willing and able to deliver it on the bank of the Mississippi river or in cars or barges to be furnished by defendant at Canton and was prevented from doing so by defendant refusing to receive and accept it. The court further proceeded in this same instruction to tell the jury that if they found “that the plaintiff *512had the straw baled and piled at a point from which he conld have removed it to the Mississippi river or put it on cars or barges to be furnished by the defendant and the defendant failed to furnish said cars or barges and refused to receive and accept the balance of said straw, then in that event the jury must find for the plaintiff but they should deduct from the amount they should so find, the cost of hauling the straw from such point to the bank of the Mississippi river or to the cars or barges at Canton.” This was as much as defendant was entitled to in the way of credit or deduction from the purchase price, and the amount of the verdict shows that the jury followed this. Construing the first and second instructions together, as must always be done, and there being no contradiction or conflict between them, we find no error as assigned by the counsel for defendant in the matter of the first instruction, none being assigned to the second.

The three instructions asked by appellant and refused by the court were properly refused for the same reason assigned by us in Koenig v. Truscoot Boat Mfg. Co., supra, for refusing like instructions there asked. Defendant attempted by these instructions to force the plaintiff to an election of the remedy which he had not chosen to follow. The first and second of these instructions, numbered 5 and 6, were based on the theory that plaintiff was entitled to merely nominal damages as he had not introduced any proof of actual damage sustained. That was not the theory upon which this case was prosecuted by plaintiff. The third instruction, numbered 7, attempted to place the rule of the measure of damage at the difference between the contract price and the market value. This was properly refused for the same reason.

The only evidence that can be said to come under the sixth assignment of error as having been evidence improperly admitted over the objections of *513defendant is this: “ Q. Did yonr wife tell yon what Mr. Miller told her to tell you in his absence? A. Yes, sir.” This answer having been given counsel for defendant said: “We object and ask that that be stricken from the record because not competent evidence in the case.” This was overruled and defendant' excepted. That was the end of the matter, no evidence as to any new contract following. The objection was properly overruled for the very sufficient reason that it was not made until after the answer had been given. Furthermore, waiving that, we are unable to see how this question and answer tended to show the making of two contracts, yet that is the contention of counsel and the objection to this question now made. It is to be said as to this contention and the point involved in it, that no such objection and no such point were made at the trial of the cause. With the single objection and motion above noted, all of the testimony in the case was introduced and received without any objection whatever on the part of defendant. Over and above that we are warranted in saying that a reading of the testimony as abstracted by counsel fails to show two contracts, so that in no view of the case is this assignment or this point tenable. It follows from this that the first assignment of error in overruling defendant’s motion for a new trial is untenable.

The judgment of the circuit court is affirmed.

Caulfield J., concurs. Nortoni, J., dissents.

ON MOTION FOR REHEARING.

REYNOLDS, P. J.

— A motion for rehearing, supported by a very elaborate brief and argument, has been filed by the learned counsel for appellant. There are two points of complaint in this motion. First, that we had entirely overlooked the point made by *514those counsel, that plaintiff is not entitled to the recovery of the alleged contract price of the straw which plaintiff claims, because, it is alleged, there is no evidence tending to show that after defendant’s alleged refusal to take the straw, plaintiff treated it as belonging to defendant and continued to hold it subject to defendant’s order and was so holding it at the time the suit was brought to recover the purchase price thereof; that on the contrary plaintiff had himself twice testified that he sold three tons of this straw to parties in Canton and appropriated the proceeds thereof to his own use.

The second ground for rehearing is that it being plaintiff’s duty, if he was holding, the straw as defendant’s property, to the extent that the straw was perishable property, to protect defendant therein by a timely sale or safe storage, it is argued that there is no evidence showing that he had done either of these.

We did not overlook any of counsel’s points but did not specifically discuss them, for our decision necessarily disposed of them.

We have examined the abstract of the record in this case very carefully, particularly the counter-abstract furnished by counsel for respondent, which is much fuller than that of appellant, and find that plaintiff distinctly testified that defendant refused to take the straw. He was then asked this question: “Did you hold it for him?” He answered, “Yes.” There was no contradiction of this testimony whatever. The court, as we stated in our opinion, in its instruction to the jury, distinctly said that to entitle plaintiff to recover they must find from the greater weight of evidence in the case “that-plaintiff had the straw baled, and was ready, willing and able to deliver it to the defendant on the banks of the Mississippi river or on cars or barges on the Mississippi river -at Canton. ’ ’ This was in the *515first instruction given at the instance of plaintiff. There was evidence to support this in the uncontradicted testimony of the plaintiff. It is true that the answer to the question which we have given is not in the present tense, hut it was sufficient prima facie, on the well known rule that when a state of things is once shown to exist, it is presumed to continue until the contrary is shown. It was very easy in this case for defendant, if his defense was that plaintiff did not have, at the time of the trial, the straw ready to deliver to defendant, to have asked as to that. If this instruction was not definite enough to meet the theory of defendant on the duty to hold the straw for defendant, 'he should have asked one himself covering it. He did ask many, four of which were given, three refused; none of them touched this.

Another point made in connection with this first proposition is that it appears plaintiff had sold part of this straw and hence could not deliver all. We do not so understand the testimony of plaintiff. Reading all of the testimony over as furnished in the abstracts of both parties, we think it clear that the bales of straw which plaintiff admitted he had sold did not come from the straw he had sold defendant.

So far as' concerns the second proposition, that it was plaintiff’s duty, if holding the straw as the property of defendant, by a timely sale or safe storage, to have protected defendant, and that there is no evidence that he did either, it is sufficient to say that we do not think it was the duty of plaintiff to sell and look to defendant for any loss; he is not proceeding on that theory. As we understand the law, the bales in the hands of plaintiff are held by him for defendant. If when defendant has made payment for the remaining bales and they are not produced in good condition, the question may arise as to whether plain*516tiff, as bailee, has taken proper care of the straw. That question is not present in this case.

The motion for rehearing is overruled.

Caulfield, J., concurs. Nortoni, J., dissents.

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