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Shilling v. Campbell

DECEMBER 12, 1962.

GEORGE SHILLING, PLAINTIFF AND COUNTER-DEFENDANT,

v.

M.D. CAMPBELL, D/B/A CAMPBELL GRAIN AND SEED COMPANY, DEFENDANT AND COUNTER-CLAIMANT.



Appeal from the Circuit Court of Edwards County; the Hon. RANDALL QUINDRY, Judge, presiding. Affirmed.

HOFFMAN, JUSTICE.

Plaintiff, George Shilling, filed suit against defendant M.D. Campbell, doing business as Campbell Grain and Seed Company, to recover for the purchase price of soybeans which he claimed he had sold the defendant and for damages to the bins in which the soybeans were stored. After the alleged sale, the beans were completely destroyed by flood waters that reached the bins on plaintiff's premises where the beans were stored. In his suit, plaintiff claimed $6,450 as the price of the beans and $2,500 for damage to the bins. The Court, sitting without a jury, awarded plaintiff $7,280, and from this judgment, defendant appeals.

In this appeal, defendant claims that the order of the trial court should be reversed or, in the alternative, remanded for a new trial as being against the manifest weight of the evidence.

It is his theory that plaintiff failed to prove that title to the beans had passed to defendant and that therefore, the risk of loss, pending delivery, was upon the plaintiff.

On the other hand, plaintiff contends that the risk of loss was on the defendant because title to the beans had passed and because actual delivery of the beans to the defendant had been delayed through the fault of the defendant. He further argued that failure of defendant to take delivery of the beans as agreed upon was the cause of the damage to his bins.

Plaintiff was a farmer living near Browns, Illinois. Defendant operated an elevator in West Salem about 12 miles away. In February, 1961, plaintiff went to defendant's place of business with a sample of beans he had raised to see if he could sell them as seed beans. The beans were checked out by an employee of defendant and on February 14 defendant wrote a letter to plaintiff as follows:

"Feb. 14, 1961

Mr. George Shilling, Browns, Illinois. Dear Mr. Shilling:

We have looked at your sample of Clark Soybeans and understand you have about 1500-1600 bushels of beans like your sample. We could use this many Clarks if they are like your sample at $2.60 bushel delivered to our elevator as soon as we can clean these and have a place to sack them. That will be the last of March. That way you would not have to turn them in for taxes if you have them sold to us. Please let us know as soon as possible if you decide to sell these. That is about all we will need for retail and would not be able to pay this for oil beans.

Sincerely, Campbell Grain & Seed Co. /s/ Maurice Campbell"

On February 28, 1961, defendant wrote a second letter to the plaintiff which read as follows:

"Feb. 28, 1961

Mr. George Shilling, Browns, Illinois. Dear Mr. Shilling:

With the rapid advance in the soybean market, you would understand that our letter of Feb. 14th would have been out of ...


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