Goodkind v. Rogan
| Decision Date | 31 March 1881 |
| Parties | MAX GOODKIND ET AL.v.WILLIAM ROGAN ET AL. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. SIDNEY SMITH, Judge, presiding. Opinion filed March 29, 1881.
This was an action by appellees, the Rogans and plaintiffs below, against the appellants, Goodkind and Oberndorf, the defendants below, to recover damages for breach of an alleged warranty, claimed by the plaintiffs to have been made by the defendants, upon the sale by the latter to the former May 8, 1880, at Chicago, of a quantity of grease, comprised in a lot of 80 tierces, said to contain 28,247 pounds, which plaintiffs bought and paid for at four cents a pound. The parties all resided and did business in Chicago--the plaintiffs as commission merchants, the defendants as manufacturers of grease. The goods were sold by sample, but the case was not tried, upon the theory that the bulk did not correspond with the sample. The theory of the plaintiffs was, that the grease was sold to them by the description of, and was represented by the defendants to be, “brown grease;” that it was not in fact “brown grease,” but an inferior kind called “coon oil.” The evidence given upon the trial fails to show that either kind of grease is adapted to any particular uses; nor was there any evidence tending to show that the plaintiffs purchased it for any particular use, or that anything whatever was said between the parties at the time of the sale, or any other time, as to the use or purpose for which the grease was bought.
The evidence simply tends to show that at the sale the plaintiffs directed defendants to ship the grease to Cincinnati to their, the plaintiffs' order, and for their account, the latter furnishing the car upon which the stuff was delivered at Chicago for shipment to Cincinnati. It was claimed by plaintiffs that when the grease arrived at Cincinnati, they ascertained that it was not, with the exception of one tierce, “brown grease,” but was what they called ““coon oil,” which they claimed was an inferior kind, and worth less in the market. Plaintiffs pretend to have made some effort to dispose of it in Cincinnati, but just what they did in that behalf they do not disclose. They however soon after its arrival there, made a re-sale of it to N. K. Fairbanks & Co., at Chicago, for three cents and one-eighth of a cent per pound, and ordered it reshipped to Chicago, where it was delivered on such re-sale and paid for at said rate per pound. There was a close conflict of evidence upon the trial, both as to the fact of a warranty and breach.
The court below permitted the plaintiffs, against the objection of the defendants, to give evidence upon the question of damages as to the expenses incurred by them by way of freight, not only in the shipment of the grease from Chicago to Cincinnati, but those for cartage and freight in the re-shipment of it back to Chicago. And at the request of plaintiff's counsel, the court gave to the jury the following instruction: “5th. If you believe from the evidence that said defendants, at the time of selling the grease in controversy to plaintiffs, warranted the same to be “brown grease,” and that plaintiffs bought the same to ship to Cincinnati for sale or use, and that defendants knew that the plaintiffs so bought it to ship to Cincinnati for sale or use and that it was so shipped to Cincinnati; and that the plaintiffs did not know at the time it was so shipped that it was not as warranted; and that said grease was not ““brown grease,” but was an inferior and poor quality of grease; and by reason of its poor and inferior quality plaintiffs were unable to sell or use it in Cincinnati, and were obliged to ship it back to Chicago in order to dispose of it, then the jury will give the plaintiffs whatever sum or sums of money, if any, that you find from the evidence, they were obliged to pay for transportation of said grease to Cincinnati, and also from Cincinnati back to Chicago.”
The jury returned a verdict for plaintiffs, assessing their damages at $196; and the court, overruling defendant's motion for a new trial, gave judgment on the verdict, and defendants appealed to this court.
Mr. B. M. SHAFFNER, for appellants; as to when there is a warranty and when it is merely an expression of opinion, cited, Benjamin on Sales, 567.
The fifth instruction was erroneous, because it assumed a fact about which there was a dispute: Andreas v. Ketcham 77 Ill. 377; Skelley v. Boland, 78 Ill. 438.
Only such damages as the parties may be supposed to have in contemplation at the time of making the contract can be recovered: Griffin v. Colver, 16 N. Y. 493; Messmore v. The N. Y. Shot Co. 40 N. Y. 427; Thorne v. McVeagh, 75 Ill. 81.
Mr. M. J. DUNNE, for appellees; that the representations amounted to a warranty, cited Hawkins v. Berry, 5 Gilm. 36; 2 Kent's Com. 660; Chitty on Contracts, 135; Osgood v. Lewis, 2 Har. & G. 495.
When a manufacturer sells his own goods and nothing is said as to quality, there is an implied warranty that they are a fair, ordinary quality: Misner v. Granger, 4 Gilm. 69; Archdale v. Moore, 19 Ill. 565.
Appellants are liable for the cost of re-shipment of the goods: Thorne v. McVeagh, 75 Ill. 81; Crabtree v. Kile, 21 Ill. 180; Field on Damages, 256; Murray v. Meredith, 25 Ark. 164; Phelau v. Andrews, 52 Ill. 486; Marsh v. Weber, 16 Minn. 418; Knowles v. Munns, 14 Law Times, 592.
Where the court can see that no injustice has been done, it will not reverse the judgment for every error: Hall v. Sroufe, 52 Ill. 421; Phalman v. King, 49 Ill. 266; Rankin v. Taylor, 49 Ill. 45; Burling v. Ill. Cent. R. R. Co. 85 Ill. 18; Stobie v. Dills, 62 Ill. 432: Crowly v. Crowly, 80 Ill. 649; Hazen v. Pierson, 83 Ill. 241.
The evidence in this case was closely conflicting as to essential elements of the plaintiff's cause of action. In such case even-handed justice requires that one party shall not obtain any undue advantage over the other by means of subtle and cunningly devised instructions. The fifth instruction asked by plaintiff's counsel and given by the court, seems to us to be precisely of that character. It ingeniously makes the court assume as facts that the grease in question was not as warranted; that it was not brown grease but was an inferior and poor quality of grease--vital facts in the case, and as to which there was a conflict of evidence. The true character and purposes of instructions to the jury have been so often defined by the Supreme Court, that we shall not stop to repeat such definitions, or cite those cases wherein instructions which assume facts as to which there is a conflict of testimony, or no evidence in support of them, are held erroneous. That the one under consideration was erroneous in the respect indicated, there can be no doubt.
We are also inclined to the opinion that the same instruction was wrong, under the evidence in the case, in the direction to the jury that they might allow plaintiffs as damages the cost of transportation of the grease, not only from Chicago to Cincinnati, but also such cost from the latter place back to Chicago.
There is no evidence in the record tending to show that there were any special circumstances known to plaintiffs and communicated to the defendants at the time the contract was entered into, which would bring such injury and damages within the contemplation of the parties, especially as to the re-shipment of the grease from Cincinnati back to Chicago. Plaintiffs disclosed to the defendants nothing in reference to the purpose for which they purchased the grease. The substance of the transaction is, that plaintiffs purchased without any statement of special circumstances, and merely directed defendants to ship the grease to Cincinnati, to their order and for their account.
This being so, there was no evidence upon which to base any hypothesis in the instruction, if it contained one, that the plaintiffs purchased the grease for any particular purpose or use, or that defendants knew it. This...
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