Berkey & Gay Furniture Co. v. Hascall

• Decision Date: 01 May 1890
• Citation: 24 N.E. 336,123 Ind. 502
• Parties: Berkey & Gay Furniture Co. v. Hascall.
• Court: Indiana Supreme Court

123 Ind. 502

24 N.E. 336

Berkey & Gay Furniture Co.

v.Hascall.

Supreme Court of Indiana.

May 1, 1890.

Appeal from circuit court, Elkhart county; James D. Osborne, Judge.

Action by the Berkey & Gay Furniture Company against Milo S. Hascall. Judgment was rendered for defendant, and plaintiff appealed.

J. M. Vanfleet and Vesey & Miller, for appellant. Wilson & Davis, for appellee.

Olds, J.

This is an action by the appellant against the appellee to recover a balance of $374.62 for goods sold and delivered. The answer is in three paragraphs, setting up a counter-claim. It is alleged in the first paragraph that on August 26, 1881, the appellee had just completed his hotel, with 50 rooms, and was in need of new furniture therefor, without which he could not carry on his business, as appellant well knew; that on said day, for the purpose of furnishing said hotel in all its parts with suitable furniture, the appellant agreed with him to furnish said furniture and every part thereof complete, and set it up in proper shape and condition in his hotel rooms, ready for use, by September 15, 1881; that said rooms were irregular and different in sizes, dimension, and construction, and for the purpose of making said furniture suitable for said rooms, appellant measured said rooms, and a list of goods was agreed upon, and at the foot thereof appellant executed a memorandum in writing as follows: “We agree to put these goods all in good order, (set up in hotel, without charge, except freight and cartage,) castored, with bracket wood-wheels on all beds. All bureaus and washstands to have good wood-wheels on rubber castors. Goods to be ready the 15th of September. Any goods not according to order, or not satisfactory, may be returned free of charge. Goshen, Aug. 26th, 1881. Berkey & Gay Furniture Co. T. M. Moseley.” The paragraph then alleges that he was ready, able, and willing to comply with his part of said contract, but that appellant, with full knowledge of all the facts, violated said agreement, in this, to-wit: It failed to deliver any of said goods prior to September 30, 1881, whereby he lost the daily use of 29 rooms, of the rental value of $2 per day for each room from September 15th to September 30th; that appellant failed to deliver said goods prior to January 18, 1882, except as set forth in the complaint; that said furniture was purchased to be delivered in sets and suits for specific rooms and places, as set forth in said foregoing memorandum, but the articles so delivered were not in sets or suits, but in disjointed and unmatched pieces, and were not and could not be properly set up or used until all were delivered; by reason of which he lost the daily rental value and use of 20 of said rooms, worth to defendant $2 each per day from October 1, 1881, to January 18, 1882, inclusive; that because of such failure he was compelled to turn away, and did turn away, 20 persons each day, who desired to become guests at said hotel, whereby the income and profits of said hotel business were diminished $50 per day. The second paragraph of the counter-claim alleges that on the 26th day of August, 1881, he had just completed his hotel, at a cost of $40,000; that it contained 40 rooms (besides dining-room, kitchen, etc.,) suitable for the entertainment of guests; that it was then operated and run by him in the business of hotel-keeping, and was so operated for the next two years; that the rental value of said hotel, when furnished, was $5,500 per year; that on said 26th day of August, 1881, he was in great need of furniture to supply and furnish 30 of the aforesaid guest rooms in said hotel, which rooms were then unfurnished and empty, in which condition they were of no rental value to defendant, all of which appellant well knew; that to supply and furnish said rooms and hotel as aforesaid, appellant promised and agreed with him to deliver and set up, in good order and condition, the furniture mentioned in its complaint by the 15th day of September, 1881, according to written specifications and agreement, (copied into first paragraph above;) that appellant failed and refused to deliver said goods until January 18, 1882, during which time, from September 15, 1881, to January 18, 1882, he was deprived of the use and rental value of said hotel, and the several rooms therein, which use and rental was of the value of $2,000. The third paragraph of the counter-claim alleges all the matters contained in the other two paragraphs, showing a little more minutely the rooms for which the different articles of furniture were designed. A reply in general denial was filed to the answer.

The cause was submitted to a jury for trial, and the jury returned a special verdict in the words and figures following: “Special Verdict. (1) We, the jury, find that the plaintiff contracted with the defendant, on the 26th day of August, 1881, to sell and deliver to defendant the several items of property mentioned in plaintiff's complaint, at and for the price of each article as stated in plaintiff's complaint, and was to deliver the same and set the same up in defendant's hotel in Goshen, Ind., and have the same ready for use in defendant's hotel, known as ‘Hotel Hascall,’ by or on the 15th day of September, 1881; that plaintiff, at the time of making such contract, knew the purpose for which said furniture was to be used. (2) Plaintiff failed and neglected to deliver any of said furniture until the 30th day of September, 1881, and thereupon and thereafter, until the 18th day of January, 1882, plaintiff delivered said furniture at the times, and in the specific articles, as severally set forth by the plaintiff in the complaint herein. (3) Defendant paid plaintiff the sums credited to defendant in plaintiff's complaint, and returned to plaintiff the items of furniture, as stated in plaintiff's complaint, to the amount of $121.85, thus leaving unpaid of the purchase price of said furniture the sum of $374.62, March, 1882, as stated by the plaintiff. (4) We further find that defendant, at and just prior to the making of said contract, had reconstructed and built his hotel building in the city of Goshen, Ind., at a cost of $40,000, and defendant was proprietor and manager thereof, and had within said hotel thirty (30) rooms that were unfurnished, and when so unfurnished were of no use or value to the defendant; that all said rooms remained vacant, and of no use or value to defendant, from the 15th day of September, 1881, to the 30th day of September, 1881, on account and by reason of the failure of plaintiff to comply with its agreement aforesaid;...