Cook & Bernheimer Co. v. Hagedorn

• Decision Date: 14 December 1920
• Docket Number: No. 10540.,10540.
• Citation: 129 N.E. 240
• Court: Indiana Appellate Court
• Parties: COOK & BERNHEIMER CO. v. HAGEDORN.

129 N.E. 240

COOK & BERNHEIMER CO.

v.HAGEDORN.

No. 10540.

Appellate Court of Indiana, Division No. 1.

Dec. 14, 1920.

Appeal from Circuit Court, St. Joseph County; Walter A. Funk, Judge.

Action by the Cook & Bernheimer Company against Charles T. Hagedorn. Judgment for defendant, and plaintiff appeals. Reversed.

Eli F. Seebirt and Daniel D. Schurtz, both of South Bend, for appellant.

Jones & Obenchain and Slick & Slick, all of South Bend, for appellee.

BATMAN, J.

Appellant brought this action upon a check, payable to its order for the sum of $548.24, drawn by appellee on the American Trust Company of South Bend, Ind. The complaint is in a single paragraph, with the usual allegations for such an action, and was answered by a general denial. Appellee also filed two paragraphs of set-off, designated as first and second, each of which were subsequently amended. The said first paragraph of set-off is based on an alleged breach of an oral agreement, by which appellee claims to have purchased 25 barrels of whisky of appellant. The averments of this paragraph are not set out, as they were withdrawn from the consideration of the jury. In the amended second paragraph of set-off, appellee admits: The execution of the check in suit, but alleges, in substance, among other things. That it was given in part payment of certain whiskies which he had purchased of appellant prior to its execution. That on March 15, 1917, he wrote and delivered to appellant the following letter:

“You can enter my order and ship to me at your earliest convenience: [Here follows a designation of 25 barrels of whisky of three different brands, with the price of each.] Send various brand labels all sizes for bottling above. I agree to report to you at the end of each sixty days, following receipt of above goods, and remit to you for whatever goods are sold. You agree to allow me to return to you at your expense any of the above goods remaining on my hands unsold, April 1, 1918, at your expense.”

That on March 25, 1917, appellant wrote and delivered to him the following letter:

“We beg to acknowledge receipt of your favor of the 15th inst., inclosing order for: [Here follows a designation of 25 barrels of whisky of three different brands, with the price of each, which is substantially the same as that contained in the letter of appellee to appellant set out above.] And we note that you agree to report to us at the end of each 60 days, and that you will remit to us for whatever goods are sold with a further understanding that any of these goods remaining on hand unsold April 1, 1918, are to be returned to us at our expense *** which is entirely satisfactory. We are sending you on account of said order [here follows a designation of 10 barrels of whisky, some of each of the three brands ordered], which we trust will reach you promptly and will meet with the entire satisfaction of both your good self and your trade. You will find these whiskies to be excellent values for the money and we hope to soon be in receipt of your further shipping instructions. Labels will be forwarded to you.”

That said letters constitute a contract by which appellant sold him 25 barrels of whisky. That in compliance therewith appellant, on March 28, 1917, shipped him 10 barrels of such whisky, amounting to the sum of $802.06 at the agreed price. That subsequently, on June 9, 1917, he gave appellant instructions to ship the remainder of said whisky so purchased at once. That appellant, although failing to do so, did not refuse at that time to comply with said contract, but requested him to anticipate payment of the whisky already shipped, stating that, owing to heavy demands, it was impossible for it to fill all orders received. That on June 25, 1917, he again requested appellant to deliver the remainder of said whisky, but it failed to do so, and agreed to ship other goods in lieu thereof, which agreement it failed to keep. That in July, 1917, he again requested the shipment of the remainder of said whisky, and was promised by appellant that the matter would receive prompt attention, but there was a failure so to do. That subsequently, on December 19, 1917, appellant gave him notice that it would not deliver the remainder of said whisky, and repudiated said contract. That appellant has always refused, and still refuses, to ship or deliver the remaining portion of said whisky according to the terms of said contract, although frequently requested so to do. That he has fulfilled his part of said contract in every respect, and was ready and willing, up to April 1, 1918, to accept and pay for said remaining 15 barrels of whisky. That shortly after he purchased said whiskies of appellant the price thereof increased throughout the state of Indiana, and elsewhere in the United States, to such an extent that its market value was $1 per gallon more than the price agreed upon in said contract; that by reason of the failure of appellant to deliver to him the remaining 15 barrels of whisky so purchased, he had sustained damages in the sum of $1,000. The paragraph concludes with a prayer that he have a set-off against any amount found due appellant upon the check in suit, and that he have judgment against appellant for any excess found due him on account of his alleged damages. Appellant answered each paragraph of set-off by a general denial, and also filed an affirmative paragraph of answer to said second paragraph, based on appellee's failure to pay the check in suit, which it is alleged was given in part payment of the 10 barrels of whisky mentioned in said second paragraph of set-off. To this paragraph of answer app...