Elliott Supply Company, a Corp. v. Green

• Decision Date: 22 January 1917
• Citation: 160 N.W. 1002,35 N.D. 641
• Court: North Dakota Supreme Court

160 N.W. 1002

35 N.D. 641

ELLIOTT SUPPLY COMPANY, a Corporation, v. E. L. GREEN

Supreme Court of North Dakota

January 22, 1917

Action to recover the purchase price of merchandise.

Appeal from the District Court of Richland County, Frank P. Allen J.

Judgment for defendant. Plaintiff appeals.

Affirmed.

Purcell Divet, & Perkins, for appellant.

In the trial of a case before a jury, a pleading filed in the case is not affirmative evidence in behalf of the party filing it. It is only evidence which the jury should consider, and it was error for the court to read to the jury those parts of the defenses contained in the answer which had been abandoned by defendant and to which no evidence has been adduced or directed. Bertelson v. Chicago, M. & St. P. R. Co. 5 Dak. 313, 40 N.W. 531, 11 Am. Neg. Cas. 269; Chisholm v. Keyfauver, 110 Cal. 102, 42 P. 424; Frederick v. Kinzer, 17 Neb. 366, 22 N.W. 770; Hickman v. Link, 116 Mo. 123, 22 S.W. 472; Boyce v. Aubuchon, 34 Mo.App. 315; Marshall v Heller, 55 Wis. 392, 13 N.W. 236; Knudson v Laurent, 159 Iowa 189, 140 N.W. 392; O'Neil v. Cardina, 159 Iowa 78, 44 L.R.A.(N.S.) 1175, 140 N.W. 196; Larson v. Chicago, M. & St. P. R. Co. 31 S.D. 512, 141 N.W. 353; Haight v. Vallet, 89 Cal. 245, 23 Am. St. Rep. 465, 26 P. 897; Sargent v. Linden Min. Co. 55 Cal. 204, 3 Mor. Min. Rep. 207; Baltimore Elevator Co. v. Neal, 65 Md. 438, 5 A. 338; Waddingham v. Hulett, 92 Mo. 528, 5 S.W. 27; Scott v. Clayton, 54 Wis. 499, 11 N.W. 595; Abbott, Civ. Trial Brief, 676, note 1, and cases cited; Iverson v. Look, 32 S.D. 321, 143 N.W. 332.

Or where the court submits the case to the jury on two conflicting theories of law. Peterson v. Conlan, 18 N.D. 205, 119 N.W. 367; Jones v. Matthieson, 2 Dak. 523, 11 N.W. 109; Blair v. Groton, 13 S.D. 211, 83 N.W. 48; Bowen v. Epperson, 136 Mo.App. 571, 118 S.W. 528.

The giving of a correct instruction will not overcome the giving of an erroneous one. Rosenbaum Bros. v. Hayes, 5 N.D. 481, 67 N.W. 951; Lindblom v. Sonstelie, 10 N.D. 145, 86 N.W. 357; Marshall v. Heller, 55 Wis. 392, 13 N.W. 236.

Where correct and incorrect instructions are given, and which bring before the jury issues and questions not in the case, it is impossible to say that the verdict is based upon issues in the pleadings, or otherwise. Swanson v. Allen, 108 Iowa 419, 79 N.W. 132; Black v. Miller, 158 Iowa 293, 138 N.W. 535; Stevens v. Maxwell, 65 Kan. 835, 70 P. 873; Kansas City, Ft. S. & M. R. Co. v. Eagan, 64 Kan. 421, 67 P. 887; Kansas City, Ft. S. & M. R. Co. v. Dalton, 66 Kan. 799, 72 P. 209; Baltimore & O. R. Co. v. Lockwood, 72 Ohio St. 586, 74 N.E. 1071, 18 Am. Neg. Rep. 590; Murray v. Burd, 65 Neb. 427, 91 N.W. 278; Geddes v. Van Rhee, 126 Minn. 517, 148 N.W. 549; Lang v. Omaha & C. B. Street R. Co. 96 Neb. 740, 148 N.W. 964; 11 Enc. Pl. & Pr. 154; 38 Cyc. 1608, and cases cited; Mt. Terry Min. Co. v. White, 10 S.D. 620, 74 N.W. 1060.

"If the part to be performed by one party consists of several distinct items, and the price to be paid by the other is proportioned to each item to be performed, or is left to be implied by law, such contract will generally be held to be severable." 2 Parsons, Contr. p. 648; Norris v. Harris, 15 Cal. 226; Spear v. Snider, 29 Minn. 463, 13 N.W. 910; Miner v. Bradley, 22 Pick. 457; Herzog v. Purdy, 119 Cal. 99, 51 P. 27; Fullmer v. Poust, 155 Pa. 275, 35 Am. St. Rep. 881, 26 A. 543; Lucesco Oil Co. v. Brewer, 66 Pa. 351; Bank of Antigo v. Union Trust Co. 149 Ill. 343, 23 L.R.A. 611, 36 N.E. 1029; Quigley v. De Haas, 82 Pa. 267; Rugg v. Moore, 110 Pa. 236, 1 A. 320; Ming v. Corbin, 142 N.Y. 334, 37 N.E. 105; Rubin v. Sturtevant, 26 C. C. A. 259, 51 U. S. App. 286, 80 F. 930; Schiller v. Blyth & F. Co. 15 Wyo. 304, 8 L.R.A.(N.S.) 1167, 88 P. 648; Field v. Austin, 131 Cal. 379, 63 P. 692.

It is the duty of the trial court, without being requested, to instruct on all material issues and legal propositions involved in the case, and a failure to do so is reversible error. Comp. Laws 1913, § 7620; Moline Plow Co. v. Gilbert, 3 Dak. 239, 15 N.W. 1; Putnam v. Prouty, 24 N.D. 517, 140 N.W. 93; Capital City Brick & Pipe Co. v. Des Moines, 136 Iowa 243, 113 N.W. 839; Hyde v. Minnesota, D. & P. R. Co. 24 S.D. 386, 123 N.W. 849; Owen v. Owen, 22 Iowa 270; Barton v. Gray, 57 Mich. 622, 24 N.W. 638.

The defendant cannot now say that he relied upon the representations of the plaintiff to his prejudice, as to the prices, etc., when he had it in his power to have easily ascertained the true state of affairs before making the contract, and failed to do so. Burns v. Mahannah, 39 Kan. 87, 17 P. 319; Foley v. Cowgill, 5 Blackf. 18, 32 Am. Dec. 49; Uhler v. Semple, 20 N.J.Eq. 288; Mosher v. Post, 89 Wis. 602, 62 N.W. 516; Poland v. Brownell, 131 Mass. 138, 41 Am. Rep. 215.

A catalogue or list or prices of goods made and promulgated is not admissible unless a foundation is laid therefor, showing how and what manner it is prepared, the nature and source of the information contained, and whether the quoted prices were based upon actual sales. Whelan v. Lynch, 60 N.Y. 469, 19 Am. Rep. 202; Wilbur v. Buckingham, 153 Iowa 194, 132 N.W. 960, Ann. Cas. 1913E, 210.

J. A. Dwyer and Wolfe and Schneller, for respondent.

The contract here was entire and indivisible for the sale and delivery of certain goods--the amount and quantity being specified. The delivery was for a less amount, and defendant refused to take any. There was no delivery of the goods bought. Sunshine Cloak & Suit Co. v. Roquette Bros. 30 N.D. 143, L.R.A.1916E, 932, 152 N.W. 359.

Where parties to a contract do not meet upon an equal footing, by reason of the extensive knowledge of the one, and the lack of knowledge of the other, a confidential relation exists, and the latter has the right to place confidence in and rely on the representations made to him by the other. Liland v. Tweto, 19 N.D. 556, 125 N.W. 1032.

BRUCE, Ch. J. GRACE, J., did not participate.

OPINION

BRUCE, Ch. J.

This is an appeal from a verdict and judgment for the plaintiff, and this opinion is written after argument on a petition for a rehearing. The complaint alleges "that on or about the 24th day of September, 1913, the plaintiff sold and delivered to the defendant, goods, wares, and merchandise (silverware) for which the defendant promised and agreed to pay the sum of $ 180, that no part of said sum has been paid."

The answer contains a general denial, and in addition alleges a rescission of the contract of purchase on the ground of fraudulent representations which were alleged to have been made in the procuring of the contract, and on the ground that the goods were not as represented and contracted for.

The first point urged by the appellant is that the court erred in charging the jury that:

"There has been some testimony introduced here tending to show misrepresentation as to the wholesale price of these articles by the representative of the plaintiff, and it is also claimed that there was a shortage in the goods. Now, as I remember the testimony on behalf of the defendant in this case, these are the only two points in controversy here, while there are other reasons set up in the answer, these--the only testimony offered was in connection with these two matters."

Counsel for appellant urges that as it was admitted that evidence had only been introduced in support of two of the defenses pleaded in the answer, a reference to the answer generally must only have tended to confuse the jury.

He also and in connection with the same point complains that the trial court in his charge to the jury practically repeated the language of the answer wherein the defendant alleged that "the goods were not according to sample and of no value, a positive damage to a dealer, were not triple plate Rogers make 1847, and that the plaintiff was not the manufacturer of the silverware." He asserts (and truthfully) that none of these defenses were relied upon by the defendant at the trial, nor was any evidence given in their support.

We do not approve of these instructions, nor of what to all intents and purposes was the reading of the answer to the jury, nor do we see any necessity therefor. It would, indeed, have been much preferable and much better practice to have merely stated to the jury that the only issues were whether or not there was a misrepresentation as to the wholesale price of the articles and as to whether or not there was a shortage in the goods. See Branthover v. Monarch Elevator Co. 33 N.D. 454, 156 N.W. 927; Swanson v. Allen, 108 Iowa 419, 79 N.W. 132.

We hardly can see, however, how the defendant could have been prejudiced in the matter. We must assume that the jury was composed of reasonably intelligent men, and it is the tendency of most men to discredit rather than to credit a defendant who in his answer pleads many defenses and upon the trial introduces evidence in support of but one or two of them. So, too, granted that the jury was composed of reasonably intelligent men, the instructions, if taken as a whole, could in no sense have been misleading.

The jury was positively told that it "should look solely to the evidence for the facts, and to the instructions of the court for the law." It was told positively that "there were only two points in controversy in the case, and that these related solely to the alleged misrepresentation as to the wholesale price and to the alleged shortage. It was positively informed that, "while there are other reasons set up in the answer, these--the only testimony offered was in connection with these two matters."

We have carefully examined the decisions cited by counsel for appellant, and, though many of them disapprove of the practice adopted by the trial judge in the case at bar, none...