Fairbanks v. Meyers

• Decision Date: 17 October 1884
• Docket Number: 10,858
• Citation: 98 Ind. 92
• Parties: Fairbanks et al. v. Meyers
• Court: Indiana Supreme Court

98 Ind. 92

Fairbanks et al. v. Meyers

No. 10,858

Supreme Court of Indiana

October 17, 1884

From the Lagrange Circuit Court.

The judgment is affirmed, with costs.

W. C Glasgow, for appellants.

J. D Ferrall, for appellee.

OPINION

Howk J.

This was a suit by the appellants, partners under the firm name of "Fairbanks, Morse & Co.," against the appellee, Meyers. The action was founded upon a written instrument alleged to have been executed to the appellants, partners as aforesaid, by the appellee, Meyers, and was brought to recover damages for appellee's alleged breaches of the terms of such instrument. The appellee, Meyers, alleged, by way of counter-claim, that the appellants had failed on their part to comply with the terms of such written instrument, whereby he had sustained damages for which he demanded judgment. Issues were joined upon the complaint and cross complaint, and were tried by the court; and, at the request of the parties, the court made a special finding of facts, and thereon stated its conclusions of law in favor of the appellee. Over the appellants' exceptions to the court's conclusions of law, and sundry motions by them made, the court rendered judgment against them in favor of the appellee.

Before considering the errors complained of in this court it is necessary to a proper understanding of the questions presented for decision, that we should first state the facts alleged by the appellants, in their complaint, as constituting their cause of action against the appellee.

The appellants alleged, in substance, that as partners under the firm name of Fairbanks, Morse & Co., they were manufacturers of and dealers in the weighing scales, known to the public as "Fairbanks' Scales;" that the appellee Meyers was a retail dealer in scales; that on the 14th day of September, 1880, the appellee made the appellants a proposition in writing, and then made and entered into a written contract with them, which proposition or contract was and is in the words and figures following, to wit:

"Chicago, Ill., Sept. 14th, 1880.

"Messrs. Fairbanks, Morse & Co., Chicago:

"Dear Sirs--You can send me to Rockford, Ill., four 600-pound platform scales on wheels and two 400-pounds, this being the first of (100) one hundred platform scales I take between this date and the 1st of April, 1881, under the following conditions: I agree to order and pay for, in the time specified, if, during the time, I have my health sufficiently to work, but if I should not be able to work all of the time specified, then I am to have an extension of time to take up the balance of scales, as long a period as was disabled. In case of death, you are to absolve me or my heirs from this arrangement.

"When ordering scales, will send you money for each lot, $ 17, 600-lbs.; $ 13.50, 400-lbs. I am to have nickle-plated beams, 50 cents. You are to prepare 50 nickeled for my trade. You are to deliver these scales, 600-lbs., on board of cars, free of cartage, at Chicago, for seventeen and 50/100 dollars, nickle-plated, and furnish me, when required, 200 pound weights for portable scales at 25 cent each. I agree to handle 'Fairbanks' scales' exclusively.

(Signed) "D. B. Meyers."

The appellants alleged that, in consideration of the mutual agreements and covenants therein contained, they of the one part, and the appellee of the other, so made and entered into the same written contract, the appellee signing, and the appellants at the same time accepting and adopting, the same as their contract, of which appellee then had full notice, both parties concurring therein, and thereafter regarding and accepting the same as their joint contract together with each other; that thereafter the appellants fully performed such contract on their part; that the appellee, on the contrary, refused to abide by or perform such contract or the terms thereof on his part; that he wholly omitted and refused to order, receive or pay for the scales and other property, which, in said proposition and contract, he had agreed and bound himself to order and pay for, or any part thereof; that, without legal or other just excuse or cause whatever, the appellee failed and refused, within the time specified in such contract, or any time since the execution and acceptance thereof, to order, receive or pay for the scales, beams and weights in said contract specified, or any part thereof; that, for the same time, the appellee had, in violation of his said contract and the terms thereof, dealt in and handled other scales, and had not for said time, or any part thereof, handled "Fairbanks' scales" exclusively; that the appellee, during all the time specified in said contract, within which he therein agreed and bound himself to order, take and pay for the scales therein mentioned, had his health sufficient to work, and was, during all said time, and thence had been and then was able to work; that the appellants prepared for appellee's use, of the kind and in the manner and style specified, all the scales, beams and weights in said contract mentioned; that they were, at the time specified in the contract, since had been, and then were ready and willing to deliver said scales, beams and weights, so prepared as aforesaid, at the place and on the terms and conditions in said contract mentioned, all of which then was and hitherto had been well known to the appellee, all to the damage of the appellants, etc.

The appellee's answer was in four paragraphs, of which the first was a general denial, the second stated special matter as a defence, and the third and fourth paragraphs were each a counter-claim. The appellants' demurrers to the second, third and fourth paragraphs were severally overruled by the court, and each of these rulings is assigned here as error.

In the second paragraph of his answer, the appellee alleged that, pursuant to the contract in suit and in performance thereof, he ordered the whole of said property, and the appellants delivered to him fifty of said scales, beams and weights, all of which he paid for; that, at all times, he had been and still was ready and willing to pay for and receive the balance of said property, but that the appellants had refused, and still refused to deliver such property to the appellee.

In the third paragraph, by way of counter-claim, the appellee said that, on September 14th, 1880, he entered into the contract with the appellants, described in their complaint, he by signing the same, and the appellants by accepting and adopting it; that said contract was executed in duplicate one signed by appellee and the other signed by the appellants, and the two were precisely alike except as to the signatures thereto; that the one signed by appellee was delivered to the appellants, and the one they signed was at the same time delivered to appellee, in execution of their mutual contract and agreement, and as one contract between the parties; that appellee could not give a copy of the contract delivered to him, for the reason that it was lost, but it was precisely like the copy set out in the complaint, except as to the signature; that the appellee ordered the scales and other property mentioned, and had fully performed the contract on his part; that the appellants delivered, pursuant to and in performance of the...