Hirschhorn, Mack & Co. v. Bradley
| Decision Date | 20 May 1902 |
| Citation | 90 N.W. 592,117 Iowa 130 |
| Parties | HICHHORN, MACK & COMPANY, Appellants, v. CHARLES H. BRADLEY |
| Court | Iowa Supreme Court |
Appeal from Dubuque District Court.--HON. M. C. MATTHEWS, Judge.
ACTION on account for cigars sold and delivered at an agreed price. Defendant did not contest the indebtedness, but interposed a counterclaim for damages for breach of a contract by which as he alleged, plaintiffs had agreed to give him the exclusive right to sell a certain brand of cigars within certain territory. The jury returned a verdict for defendant on his counter claim, and from the judgment thereon plaintiffs appeal. Affirmed.
AFFIRMED.
Henderson Hurd, Lenehan & Kiesel for appellants.
Matthews Lindsay & Frantzen and N. E. Utt for appellee.
It is alleged in defendant's counterclaim, and there is evidence tending to show, that in January, 1897, defendant made an oral contract with one Glaspell, acting as plaintiffs' agent, by which defendant acquired from plaintiffs the exclusive right to sell in certain territory in Iowa a brand of cigars known as the "Tom Moore," manufactured by plaintiffs. In this contract it was contemplated and understood that defendant was to incur expense in introducing the cigar to the trade within the territory given to him, and it was agreed that plaintiffs should furnish such cigars of this brand as defendant should order as long as defendant continued to render the best service in his power in pushing the sale of said cigars. About July 1, 1898, plaintiffs refused to longer furnish cigars to defendant; and defendant was unable, therefore, to make further sales thereof to his customers, although he had, by introducing the cigar to the trade, at some expense, built up a demand for them.
I. Counsel for appellants assign errors on the rulings as to the admission and exclusion of evidence, and the giving and refusal of instructions with reference to the authority of Glaspell to make this contract. There was evidence tending to show that defendant was notified that Glaspell would visit him in Dubuque, with the view of making some arrangement with him for handling these cigars. There was some evidence of a custom in the trade by which it was generally understood that agents negotiating with jobbers for the introduction of brands of cigars had authority to give the exclusive privilege for an unlimited time. The court excluded testimony of a witness as to what was said by a member of plaintiff firm to Glaspell at Rockford, Ill., where the two had been negotiating for the release by another agent of territory which was to be given to defendant, as to the terms of the contract which Glaspell should make with defendant; but we think there was no error in this ruling, for, as against a contract made by a general agent within the scope of his authority, it is not competent to show private instructions given to the agent by the principal. It may well be that in some cases the authority given to the agent may be proven, although the person with whom the agent subsequently deals is not bound to know the extent of such authority. Rosenberger v. Marsh, 108 Iowa 47, 50, 78 N.W. 837. But what the witness in the case before us was asked to testify to was not the authority of the agent, but a conversation between the agent and the principal. Clearly, this was immaterial under the issues. Much is said by counsel for appellants as to the evidence introduced by defendant to show a usage of trade by which the contract was within the general scope of Glaspell's apparent authority. But we find no error in the giving of instructions on this subject, or the refusal of those asked. It seems not to be the rule in this state that to prove such usage the evidence must be "clear, uncontradictory, and distinct." If there is evidence of the alleged usage, the question as to whether it exists is one for the jury, and mere conflict in the evidence will not justify its exclusion. Milroy v. Railway Co., 98
Iowa 188. In the case of Kaufman v. Manufacturing Co., 78 Iowa 679, evidence of such a usage was received and considered for the purpose of showing the authority of the agent to make substantially such a contract as is sought to be established in this case. It is contended that the testimony as to the usage did not exactly conform to the allegations as to the contract which Glaspell is claimed to have made, but there was not such variance as to render the testimony inadmissible.
II. One of the defenses set up by plaintiffs to defendant's counterclaim was that defendant had failed to carry out his part of the agreement, as to rendering his best services in pushing the sale of the brand of cigars in question, by putting into the hands of his agents, and urging them to promote the sale of, another brand of cigars, manufactured by himself; but it is to be said that while the "Tom Moore" was described as a seed and Havana tobacco 10-cent cigar, and the cigar which defendant manufactured and put into his agents' hands was also a cigar of the same general description, it was not offered to the trade as identical with the Tom Moore. Defendant did not agree to sell no other 10-cent cigar than the Tom Moore, nor did he agree that he would not sell any other cigar made of seed and Havana tobacco. If he made the proper efforts to introduce and push the sale of the Tom Moore cigar, he was at liberty, so far as we can see, to also introduce and push the sale of as many other brands of cigars as he saw fit. If this was not what plaintiffs expected, the evidence shows that they had failed to embody their understanding in the contract. While there is some evidence that defendant attempted to have his agents push his own cigar to the exclusion of the brand which he undertook to sell for plaintiffs, there was certainly a conflict of evidence on this question, and at least some testimony to show that the instructions to his agents to push his own cigar to the detriment of the Tom Moore were not given until after plaintiffs had refused to furnish further cigars of the latter brand. It is not claimed that there was error in the instructions given by the court on this subject, and, in view of the conflict in the evidence, it was not the duty of the court to instruct, as defendant asked, that plaintiffs had no right to recover, nor to grant a new trial on the ground that, under the instructions given, the verdict should have been for the plaintiffs.
III. Some objection is urged to rulings of the court allowing evidence to be introduced as to the usage of the trade in regard to the length of time during which a jobber should make particular efforts to introduce a brand of cigars. But one of the stipulations in defendant's contract was that defendant was to render his best services in pushing the brand of cigars in question, and it was material and proper for him to show what that implied. Certainly it did not necessarily imply that he should continue, as long as the contract was in force, to make the same efforts to bring the cigar to the attention of the trade that he was required to make in its first introduction. We find no error in the rulings complained of on this question.
IV. The chief contention, however, of counsel for appellants, is that the damages which defendant attempted to show were too remote and speculative to be considered. Evidence was admitted, over plaintiffs' objection, showing the number of Tom Moore cigars sold by defendant in his territory up to the time when plaintiffs refused to furnish him any more cigars under the contract, and the number of the same kind of cigars sold in the same territory by the jobber to whom the territory was given by plaintiffs after the contract with defendant was revoked. It may be of assistance in considering this evidence to say here that defendant, by his pleadings, limited his right to recover to the damages accrued up to the time of trial, and also that the sales in this territory subsequent to the revocation of defendant's contract were proven by the testimony of a witness who had been a traveling salesman for defendant in the sale of the cigars under the contract and who, after its revocation, became salesman for the jobber who acquired from plaintiffs the right to sell the cigar in the same territory. The court instructed that, if the jurors found defendant to be entitled to recover damages under his counterclaim, then, in arriving at the amount of damage, they should consider the evidence above referred to, in connection with all evidence relating to the price at which the cigars were to have been furnished to defendant under the contract, and the price at which they were to be resold, and of evidence as to what it would cost defendant to have handled and sold said cigars in said territory, and, from all the evidence relating to these matters, determine how much, if anything, said defendant had been damaged by the breach of the contract. The jurors were also told that, in ascertaining the amount of damage, they should determine as nearly as possible the quantity of cigars defendant would have sold in said territory up to that time, and the profits which would have accrued from such sale, and that, in determining the quantity of cigars which defendant would have sold, they might consider the number sold prior to the breach of the contract, the state and condition of the trade, the number of towns in the territory, and the demands of the trade in said territory for the Tom Moore brand of cigars. And the court refused to direct the jurors, as requested by plaintiffs, that they should not take into account or include in their verdict any sums for profits upon cigars which defendant might have sold, if his right to sell the same had not been taken from him, or any...
To continue reading
Request your trial