Franz Falk Brewing Co. v. Mielenz

• Decision Date: 23 February 1888
• Citation: 37 N.W. 728,5 Dak. 136
• Parties: Franz Falk Brewing Co., Limited, v. Mielenz et al.
• Court: South Dakota Supreme Court

37 N.W. 728

5 Dak. 136

Franz Falk Brewing Co., Limited,

v.Mielenz et al.

Supreme Court of the Territory of Dakota.

February 23, 1888.

Appeal from district court, Davison county; Bartlett Tripp, Judge.

Action by the Franz Falk Brewing Company against A. W. Mielenz and F. W. Mielenz, partners as Mielenz Bros., for the price of beer sold to defendants. There was a judgment for defendants, and plaintiff appealed.E. Whittlesey, (A. J. Edgerton, of counsel,) for appellant. Dillon & Preston, for respondents.

FRANCIS, J.

This action comes up on appeal from the judgment of the district court in and for the county of Davison, territory of Dakota, on exceptions to the verdict of the jury, and on the judgment of the court denying a motion to set aside the verdict and grant a new trial, and three errors assigned. The action was originally brought to recover $660 for goods, wares, and merchandise sold and delivered by the plaintiff to the defendants. The defendants answered, admitting that they ordered and received the goods, wares, and merchandise mentioned in the complaint, namely, certain beer. Defendants further allege that on or about March 5, 1884, they made a contract with the plaintiff, whereby it agreed to sell and deliver beer to the defendants, at Mitchell, Dak., when ordered by defendants, which plaintiff agreed should, when received at Mitchell, be good and salable, and as good as the Joseph Schlitz Brewing Company beer, or better, and for which the defendants promised to pay the plaintiff $6.40 per barrel, and that, by said contract, the defendants were to pay freight on the beer when they received it, and the plaintiff was to procure and purchase for the defendant A. W. Mielenz a thousand-mile ticket on the Chicago, Milwaukee & St. Paul Railroad, free of charge; that said beer, when received at Mitchell, was not good or salable, and was not as good as the Joseph Schlitz Brewing Company beer; was sour, spoiled, unsalable, and damaged, and not worth the freight paid thereon by the defendants; that the freight paid thereon by the defendants amounted to $180; that, as soon as defendants ascertained that said beer was not good and salable, they notified the plaintiff of that fact, and that they held said beer subject to the plaintiff's orders. The defendants further allege that for a long time prior to March 5, 1884, they had been doing a wholesale liquor business in the city of Mitchell, Dak., under the name and style of Mielenz Bros.; that, as such firm, they had a large number of customers who were receiving their supplies from defendants; and that, being desirous of purchasing said beer for the purpose of selling the same in job lots to their said customers, they did, on or about March 5, 1884, make a contract with the plaintiff, whereby it was agreed by and between the plaintiff and defendants that the plaintiff should ship and deliver to the defendants certain beer, at $6.40 per barrel, said defendantsto pay freight on all beer received, said beer to be good and salable beer, and to be as good as Joseph Schlitz Brewing Company beer, and that said beer should be good and salable beer when received at Mitchell; that the defendants, relying upon said contract and representations, ordered, under said contract, a car-load of said beer, and on or about July 10th ordered a second car-load of said beer, under the terms of said contract; that they received the beer so ordered shortly afterwards, and paid the sum of $180 freight upon the same, and sold the same to their said customers in the towns on the line of roads near the town of Mitchell; that said defendants were at large expense shipping said beer to their customers, and that said beer was returned by their said customers to these defendants on account of its being sour, spoiled, and worthless, and these defendants were compelled and did pay in freight large sums of money, amounting to the sum of $50, in the shipping and returning of said beer, making in all the sum of $230 paid in freight, besides the sum of $10 for drayage. Defendants then aver that said beer was not good or salable beer, nor was it as good as Joseph Schlitz Brewing Company's beer, and that the same was sour and spoiled, and that, as soon as the defendants ascertained that said beer was spoiled and sour, they notified the plaintiff to that effect, and that said beer was held subject to plaintiff's order. The defendants further allege that the plaintiff failed and refused to furnish the defendants with good beer, and that, by reason of the spoiled condition of said beer, they had been damaged in their trade in the sum of $100, and damaged by reason of the payment of freight and drayage $330 in addition, no part of which has been paid. Wherefore the defendants demand judgment against the plaintiff in the sum of $330, and for costs. Plaintiff replied to the defendant's counter-claim, admitting that the defendants were a firm doing business at Mitchell under the firm name and style of Mielenz Bros., and denying any knowledge or information of the other allegations of said counter-claim. The case was tried to the court and jury, and March 26, 1886, the jury rendered the following verdict: “We, the jury, find for the defendants, and assess their damages at one cent.” March 26, 1886, the plaintiff moved for a new trial upon the following grounds: “That the verdict is contrary to the law and evidence introduced upon the trial of said case, and that the evidence will not support the verdict.” April 2, 1886, the court denied said motion, and...