Eldridge v. Hargreaves

• Decision Date: 28 October 1890
• Citation: 46 N.W. 923,30 Neb. 638
• Parties: ELDRIDGE ET AL. v. HARGREAVES ET AL.
• Court: Nebraska Supreme Court

30 Neb. 638

46 N.W. 923

ELDRIDGE ET AL.

v.HARGREAVES ET AL.

Supreme Court of Nebraska.

Oct. 28, 1890.

Syllabus by the Court.

1. While the facts constituting separate and distinct causes of action or defense are required to be separately stated, so that each count is distinct from every other and complete in itself, yet, where a fact has been stated once in a pleading in a cause, it may be referred to in any subsequent pleading, or subsequent count of the same pleading, and by proper reference be made a part thereof.

2. The answer construed and held to state all the essential facts necessary to constitute a counter-claim for a breach of warranty.

3. In an action against a partnership for a breach of warranty, it is competent to prove that one member of the partnership made the representations and warranty for the firm that induced the sale, although the pleading alleges that the warranty was made by the firm. A partnership is bound by the representations and warranties made in the sale of its goods by a member thereof.

4. In such an action, it is not necessary to prove each representation set up in the pleading, but it is sufficient if any one of the material representations averred is established which induced the purchase.

5. The testimony offered by the plaintiffs to establish propositions of compromise made by the defendants was rightly excluded.

6. In a suit for a breach of warranty brought by A. against B., it is not competent to prove the representations made by C. to D. in the sale of the same kind of goods.

7. Held, that the instructions correctly embodied the law applicable to the case.

Error to district court, Lancaster county; FIELD, Judge.Chas. O. Whedon, for plaintiffs in error.

Cornish & Tibbets, for defendants in error.

NORVAL, J.

This suit was brought by the plaintiffs in error to recover the sum of $1,203.90, with interest thereon, for 350 cases and 50 kegs of orange cider sold and delivered to the defendants. The defendants filed the following answer: “For answer to plaintiffs' petition herein, defendants admit that on or before the 12th day of July, 1887, he entered into contract with plaintiffs for the purchase of goods mentioned in plaintiffs' petition, and that he agreed to pay for the same the sum of $1,203.90, on the 11th day of October, 1887; that said goods were delivered, and that the same are not paid for, as alleged in plaintiffs' petition. (2) For a further defense, and by way of counter-claim, defendants allege that the said plaintiffs, as an inducement to the defendants to purchase from them said goods mentioned, falsely and fraudulently represented and warranted to the defendants that the said goods, consisting of orange cider, were of a good merchantable quality, and valuable for the wholesale trade; that the said orange cider was manufactured from orange juice and lime juice from California fruit; that it was properly named ‘orange cider;’ and that the defendants, relying upon said representations and warrants, purchased from the plaintiffs the said goods, as above stated; that, at the time of said representations and purchase, the defendants were engaged in the business of wholesale grocers, and purchased said goods for the purpose of selling in the ordinary course of trade to retail dealers, all of which, at the time, was well known to the plaintiffs, and plaintiffs sold said goods for said purpose. (3) Defendants aver that said orange cider was not as represented and warranted, but, on the contrary, it was manufactured entirely from harmful and inexpensive drugs and water, and is of no marketable value, and not fit for the purpose of the wholesale trade, all of which plaintiffs at the time well knew. (4) By reason of the false representations and warrants as aforesaid by which plaintiffs [defendants] were deceived and induced to make said purchase, and of the above premises, defendants have sustained damages in the sum of $1,500, for which sum defendants ask judgment, together with costs of suit.” The plaintiffs replied, denying every allegation of the answer. The case was tried to a jury, who found that there was due the plaintiffs, upon the cause of action set forth in their petition, $1,321; that there was due the defendants, upon their counter-claim, the sum of $1,075, and assessed the plaintiffs' recovery at $246. The defendants filed a remittitur of $9 from the amount found due on their counter-claim, and a judgment was rendered in favor of the plaintiffs for $255. Upon the trial, the plaintiffs objected to the defendants introducing any testimony, for the reason that the facts stated in the answer are insufficient to constitute a defense to the plaintiffs' cause of action, or to establish a counter-claim in favor of the defendants. The objection was overruled, and the ruling is assigned as error.

While the answer is divided into four distinct paragraphs, it is clear that the pleader only attempted to state a single cause of action against the plaintiffs; and, in determining the sufficiency of the pleading, it must be construed as an entirety. The first paragraph of the answer makes reference to the contract declared upon in the petition; admits that the defendants entered into the same, received the goods in the petition mentioned, and agreed to pay therefor the amount therein stated. The remainder of the answer consists of a plain statement of the facts constituting the defendants' counter-claim. It is urged by counsel for plaintiffs that in construing that part of the answer setting up a counter-claim, we must not consider the first paragraph of the answer, or any allegation of the petition which is referred to in the answer. While it is true, as a general rule, that each count in a petition or answer should be separate and distinct from every other count, and be complete in itself, it does not follow, when a fact has been once stated in a pleading, that it is necessary to state it again in the same case. An allegation in one count may be referred to in any subsequent count, and made a part thereof by reference, and the allegation referred to will be considered in construing such subsequent count. So an answer may refer to an allegation of the petition, and by such reference make it a part of the answer. Any other rule would require unnecessary repetition. The facts set up in the petition, which are admitted by the answer, must be considered in construing the answer. The defendants having alleged that they were damaged by reason of the breach of warranty in the sum of $1,500, it was not necessary that they should have pleaded in the answer what would have been the value of the goods if they had been as warranted, or their value as they actually were when received. The answer states all the essential facts necessary to constitute a counter-claim for a breach of warranty. It is substantially the same as the form given in Maxwell's Pleading and Practice for a counter-claim for a breach of warranty. The testimony shows that E. A. Hargreaves, one of the defendants, met in the city of Omaha, in July, 1886, C. C. Higgins, one of the plaintiffs, who at that time sold to the defendants a large quantity of an article called “orange cider,” which was to be thereafter delivered to the defendants in the city of Lincoln, for which they agreed to pay $1,357.50, and that Higgins exhibited to Hargreaves several bottles of the drink, which were labeled as follows: “California orange cider. The pure juice of the ripe fruit clarified. Natture's most healthful beverage. Superior to lime juice or lemonade as a refreshing drink. Especially recommended as a fruit alterative, to be taken at lunch or meal time.” The testimony introduced by the defendants tends to prove that Higgins, to induce the sale, represented to Hargreaves that the article was orange cider, manufactured in California from orange juice, and that it was a good, salable article. Charles C. Higgins, one of the plaintiffs, testified that he made no false representations to Hargreaves, but that at the time of the sale he truthfully informed Hargreaves of all the facts regarding the cider. Higgins, in his testimony, admitted that he knew when he made the sale to the defendants that the beverage was not made of orange juice, and that it was put up in Columbus. But three of the persons who were present at the time of the sale, and heard the conversation, were witnesses upon the trial. They were A. E. Hargreaves, C. C. Higgins, and Herbert C. Bowman. The testimony of the interested witnesses, Hargreaves and Higgins, is conflicting. What one avers as true, the other denies. Hargreaves was corroborated by the testimony of Bowman, a disinterested witness, who was present when the order for the goods was given, and heard the entire conversation. We quote from his testimony: “Question. State what was said at the conversation. Answer. Well, Mr. Higgins took us upstairs, and he said he had this orange cider there, and sent down for some samples; sent for ice water, and he poured it out, and we all tasted the orange. He said a couple of young fellows had gone to California, and had seen those oranges going to waste off the trees, and not used, and they conceived the idea of making this cider of it. They had furnished money to these young fellows to make cider of these oranges, and Mr. Hargreaves asked him if it was put up in Columbus. He said yes, it was put up in bottles there, made in California and bottled in Columbus. He asked him why he had it put up in Columbus. He said it would cost more in bottles. They would have to ship them back, and pay double first-class freight; the bottles would cost him double than putting it up in Columbus. We talked the thing over, talked about the labels, one thing and another,--why they did not put their name on the labels. It being a California product, and having it put up in Columbus, the trade would not understand why it was not put up...