Cook & Bernheimer Co. v. Hagedorn

• Decision Date: 21 June 1921
• Docket Number: No. 10540.,10540.
• Citation: 82 Ind.App. 444,131 N.E. 788
• Court: Indiana Appellate Court
• Parties: COOK & BERNHEIMER CO. v. HAGEDORN.

82 Ind.App. 444

131 N.E. 788

COOK & BERNHEIMER CO.

v.HAGEDORN.

No. 10540.^*

Appellate Court of Indiana, Division No. 1.

June 21, 1921.

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. Affirmed.

Superseding former opinion, 129 N. E. 240.

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, dated July 10, 1917, and 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 The averments of this paragraph are not set out, as they were withdrawn from the consideration of the jury.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 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 a letter (a copy of which was made a part of said paragraph of set-off as an exhibit), by which it accepted said order, and agreed to deliver to him said 25 barrels of whisky on the terms he had proposed. 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 portionof 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 had 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 filed motions to make said first paragraph more specific, and to strike out parts of said second paragraph, each of which was overruled. Each of said paragraphs was answered by a general denial, and the latter by an affirmative paragraph, based on appellee's failure to pay the cheek in suit, which it alleged was given for the unpaid balance due on said 10 barrels of whisky. To this affirmative paragraph of answer appellee filed a reply in general denial. The cause was submitted to a jury for trial, resulting in a verdict and judgment in favor of appellee. The jury returned with its verdict answers to certain interrogatories submitted by the court, on which appellant unsuccessfully moved for judgment in its favor notwithstanding the general verdict. Appellant also filed its motion for a new trial, which was overruled, and it now prosecutes this appeal on an assignment of errors, which requires a consideration of the questions hereinafter determined.

[1][2] Appellant predicates error on the action of the court in overruling its motions to make the first paragraph of appellee's setoff more specific, and to strike out parts of the second paragraph thereof. The ruling on the motion addressed to said first paragraph was not reversible error, as the court withdrew said paragraph from the consideration of the jury by an instruction requested by appellant. The ruling on the motion addressed to said second paragraph, being a motion to strike out parts thereof, was not reversible error. Jones v. Bryan (1913) 53 Ind. App. 550, 102 N. E. 153;Portland, etc., Co. v. Gibson (1915) 184 Ind. 342, 111 N. E. 184.

[3][4][5] Appellant contends that the court erred in overruling its motion for judgment on the answers to the interrogatories returned by the jury, notwithstanding the general verdict. It bases this contention on a claim that such answers show that appellee had failed to perform his part of the contract set up in his second paragraph of set-off, in this, that he had not made the reports at the end of each 60 days, as required by the terms thereof, and by stopping payment of the check in suit he had failed to pay for the goods received from appellant thereunder. In determining this contention we must bear in mind that answers to interrogatories will not prevail over a general verdict, unless the conflict between the two is such that no possible evidence under the issues could reconcile them. Williams v. Lowe (1916) 62 Ind. App. 357, 113 N. E. 471. Under this rule appellant's contention cannot be sustained on the grounds stated, for the following reasons: The evidence may have shown that the making of the reports mentioned in the contract was waived. Such evidence would have been competent under the allegation of performance. Union Fraternal League v. Sweeney (1915) 184 Ind. 378, 111 N. E. 305;Kenefick v. Schumaker (1917) 64 Ind. App. 552, 116 N. E. 319. The evidence may also have shown that, by the agreement of the parties, the check in suit was accepted by appellant in payment of the balance due for the whisky theretofore shipped under the contract. This would have had the effect of extinguishing the debt for which it was given. Sutton v. Baldwin (1896) 146 Ind. 361, 45 N. E. 518. For the reasons stated the court did not err in overruling the motion under consideration.

[6] Appellant also contends that the court erred in overruling its motion to instruct the jury at the close of the evidence to return a verdict in its favor for the amount of the check in suit. This action of the court does not constitute reversible error, since the mere overruling of such motion worked no injury to appellant, but the substantial and available error, if any, was in refusing to give such an instruction. Getchel v. Chicago, etc., R. Co. (1902) 29 Ind. App. 410, 64 N. E. 618;Smith v. Cleveland, etc., Ry. Co., (1917) 67 Ind. App. 397, 117 N. E. 534.

[7][8] Appellant further contends that the verdict is not sustained by sufficient evidence. It asserts that as to the contract alleged in the second paragraph of set-off there is no proof of performance on the part of appellee, or facts showing a valid excuse for such failure, and hence appellee has failed to show a right of recovery, as the first paragraph was withdrawn from the consideration of the jury. We recognize the well-established rule on which this contention is based, but it should be borne in mind that a defense based on the fact that the complaining party has failed to perform his part of a contract may be waived, and a recovery had notwithstanding such failure. Kenefick v. Schumaker, supra, and cases there cited. With this in mind we will direct our attention to the evidence relating to any such failure of performance on the part of appellee, and the waiver on the part of appellant of any defense, which might have been based thereon. The failure of performance on which appellant relies is based on a claim...