Brigham v. Retelsdorf

• Decision Date: 07 March 1888
• Citation: 36 N.W. 715,73 Iowa 712
• Parties: BRIGHAM ET AL. v. RETELSDORF.
• Court: Iowa Supreme Court

73 Iowa 712

36 N.W. 715

BRIGHAM ET AL.

v.RETELSDORF.

Supreme Court of Iowa.

March 7, 1888.

Appeal from district court, Mills county; A. B. THORNELL, Judge.

The plaintiffs, J. W. Brigham & Co., are merchants in Massachusetts, and a salesman in their employ sold the defendant, J. P. Retelsdorf, in Iowa, several cases or packages of boots and shoes, for the aggregate price of $454.85; but the contents of each case or package was sold at a stated price per dozen, so that for each of such packages there was a separate and distinct price. The sale was made by sample. Upon the receipt of the goods, the defendant claims to have ascertained that the goods in certain packages were not as good or were unlike the samples exhibited to him. Such packages he immediately reshipped to the plaintiffs, and kept the residue. The goods so shipped the plaintiff refused to receive, and they remained in the custody of the carrier. This action was brought to recover the purchase price of the goods. The jury found for the plaintiff for the value of the goods retained by the defendant, and the plaintiff appeals.W. S. Lewis, for appellants.

Phillips & Day, for appellee.

SEEVERS, C. J., ( after stating the facts as above.)

The finding of the jury must be regarded as a settlement of several disputed questions. For instance, their finding settles, in defendant's favor, that the goods were sold by sample, and that they did not correspond therewith. It is true, counsel for the plaintiff claim the verdict is not sustained by the evidence, but it clearly is, if the evidence introduced by the defendant can be credited. The evidence is conflicting, and the jury determined such conflict in defendant's favor, and we cannot interfere with such finding, under the well-settled practice and rulings of this court. This view disproves the first and third errors assigned.

2. The second error assigned is that the “verdict is contrary to the law.” This is too general, and must be disregarded. The verdict is not contrary to the instructions of the court; and this disposes of the fourth error assigned. The fifth error assigned is that the court erred in “not instructing the jury to return a verdict for the full amount of the plaintiffs' claim.” No such instruction was asked, and, from what has been said, it is apparent it would have been error if such an instruction had been given. The sixth assignment of error is as follows: “The court erred in not sustaining the plaintiff's motion for judgment for the full amount of their claim, upon the evidence produced at the trial.” We fail to discover any such motion...