H. R. Kamm & Co. v. Co

• Decision Date: 09 December 1905
• Docket Number: 14,367
• Citation: 72 Kan. 459,83 P. 1103
• Court: Kansas Supreme Court
• Parties: H. R. KAMM & CO. v. W. E. SLOAN & CO

83 P. 1103

72 Kan. 459

H. R. KAMM & CO. v. W. E. SLOAN & CO

No. 14,367

Supreme Court of Kansas

December 9, 1905

Decided. July, 1905.

Error from Sedgwick district court; THOMAS C. WILSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

PRACTICE DISTRICT COURT--Instructions--Incorporation of Pleadings. A trial court should clearly state to the jury the issues to be tried by them. It is not good practice to incorporate the pleadings into the instructions. Where, however, the pleadings are made up of a short petition, alleging a contract, a breach, and resulting damages, and an answer which is a general denial, it is not prejudicial error for the court, after having plainly stated the issues, to incorporate the petition into the instructions.

I. P. Campbell & Son, for plaintiffs in error.

Dale & Amidon, for defendant in error.

GREENE J. All the Justices concurring.

OPINION

GREENE, J.

The plaintiff, W. E. Sloan, who was doing business under the name of W. E. Sloan & Co., recovered judgment for damages resulting to him from a breach of contract by defendants, and they prosecute error. The plaintiff pleaded an offer made to him at Wichita, Kan., by the defendants at New Castle, Colo., to sell and ship to him at Wichita six cars of potatoes of a particular kind and quality, for a given price, shipments to begin on or about October 26, 1903, and his acceptance of defendants' proposition, and a neglect and refusal by the defendants to comply with the contract, in consequence of which plaintiff was damaged $ 315. The answer was a general denial.

It would serve no purpose to discuss the facts or the evidence in this case; suffice it to say that the evidence supports all of the material findings of the jury, and such findings made it necessary for the court to render judgment for the plaintiff.

Contentions of the plaintiffs in error not disposed of by the above conclusion are, first, that the court misconceived the theory upon which the action was brought, and consequently his instructions were not applicable. Upon this question it is contended that the action was brought and tried on the theory that the plaintiff was selling potatoes on commission; that, therefore, the failure of the defendants to fulfil their contract could only result in a loss to plaintiff of his commission for selling them; and that the instructions were based on the theory that plaintiff claimed to be a dealer and his damages should be measured by the difference between the contract price of the potatoes and the market value at the time and place they were to be delivered. The theory of the action was not misconceived by the court. The action was not brought by plaintiff as a commission merchant, but as an independent dealer.

Another contention is that the court erred in copying the petition and exhibits into the instructions and submitting...