Kaufman v. Farley Manuf'g Co.

• Decision Date: 28 October 1889
• Citation: 43 N.W. 612,78 Iowa 679
• Parties: KAUFMAN ET AL. v. FARLEY MANUF'G CO.
• Court: Iowa Supreme Court

78 Iowa 679

43 N.W. 612

KAUFMAN ET AL.

v.FARLEY MANUF'G CO.

Supreme Court of Iowa.

Oct. 28, 1889.

Appeal from district court, Dubuque county; D. J. LENEHAN, Judge.

Plaintiffs sue for the purchase price of a quantity of cigars. Defendant admits the claim, and, by way of cross-action, claims damages for breach of contract for the delivery of cigars. From a judgment for plaintiffs, the defendant appeals.Utt Bros. & Michel, for appellant.

Powers & Lacy, for appellees.

GRANGER, J.

This action was brought to recover of defendant the value of a quantity of cigars. The claim of plaintiffs is admitted, and the issues are upon the answer and reply. Plaintiffs are manufacturers and wholesale dealers in cigars in the city of New York. The defendant is a corporation doing business in Dubuque, Iowa, as jobbers, and their business includes the sale of cigars in Dubuque and the country tributary thereto. The averments of the cross-petition, in brief, are that in March, 1885, the plaintiff company agreed to give to the defendant the exclusive right to sell in Dubuque, and country tributary thereto, a certain brand of cigars known as “Our Bob,” which brand the plaintiffs had the exclusive right to manufacture; that in consideration of the plaintiffs' agreement the defendant was to employ men to travel and sell such cigars, and establish a trade therein in said territory; that in pursuance of such agreement the defendant did employ men so to travel, who expended time and money in building up a trade for said cigars; that for the purpose of such trade plaintiffs were to ship the defendant cigars when ordered, and so long as defendant desired to deal in the cigar, or so long as the trade continued; that the agreement was observed by both parties to the 23d of June, 1885, when the plaintiffs violated the agreement by refusing to furnish cigars to the defendant for such trade. The plaintiffs deny these allegations of the cross-petition. At the trial in the district court the defendant introduced evidence tending to establish the contract, the breach, and damage. At the close of the defendant's testimony, on motion of plaintiffs, the court struck out of the evidence introduced on the question of damage, and as to the refusal of plaintiffs to furnish cigars, and directed the jury to return a verdict for plaintiffs for the amount of their claim.

1. Appellees claim that alleged errors in the case cannot be considered, because the assignment is not sufficiently specific. One assignment is that “the court erred in sustaining the motion made by plaintiff at the close of defendant's testimony, and directing a verdict for the plaintiff.” The argument treats this assignment as involving a “misapprehension” of appellees' motion, to the extent of assuming that the motion asked the court to direct a verdict for plaintiffs. It is true the motion does not ask that, and we think it equally true that the assignment does not convey such a meaning. It merely assigns error in sustaining the motion, whatever it was, and in directing the verdict as the court did. Thus understood there is no misapprehension, and the assignment calls attention directly to the error complained of, which is the purpose of the assignment. It is true that of the assignments made some are unnecessary, being the same assignment made in different forms. This practice is quite common, and induced by a spirit of caution to avoid failure in having the assignment considered. Other assignments we think are sufficient, and will receive notice.

2. We first notice the error assigned as to ruling on motion to strike the testimony. The testimony is so directly involved in the consideration of this point that we set out a part of it, and will, as it becomes important, refer to other points. J. K. Farley, for defendant, said: “Defendant company is and has been engaged for the past seven years in jobbing teas, coffees, and other like groceries; also cigars and crackers. During all of that time I have been its secretary, treasurer, and business manager. The territory we covered is northern Iowa, southern Dakota, Minnesota as far as Red Wing, and southern Wisconsin, and northern Illinois. For over seven years we have jobbed cigars over this territory, and have kept about five men on the road. We buy our cigars from the manufacturers in the east. The first business transaction we ever had with the plaintiffs was in relation to their ‘Our Bob’ cigars. Mr. Katz, representing plaintiffs' firm, called on me in forepart of March, 1885. He told me he had a special brand of cigars he would llke for us to take hold of, and talked a good deal about the merits, as being the finest thing on the market. It was having a big trade in the east, and he would like to have us take hold of it. He said it was the finest five-cent cigar made in New York city. That he wanted us to take hold of them, and talk of that character, and he would guaranty us a big sale on them, and that he would give us the exclusive sale of the cigar in Dubuque, and the territory tributary to it. That he wouldn't sell to anybody else in Dubuque; and Mr. Katz said that he would not sell the cigars any nearer than Omaha, on the west, St. Louis, on the south, Chicago on the east, and St. Paul, on the north, so that they woudn't conflict with us; and insisted in that way on me taking hold of the cigars. I told him that we had a large stock of cigars, and that we could not take hold of them without dropping something out; that it was an injury to us to do so; and he insisted, and at last we gave him an order, with the understanding, as stated, that we were to have the exclusive control of the cigars for Dubuque, and territory tributary, and he would not sell anybody else, as stated; and the cigars came in due time. A lot of advertising matter was also sent us,--street signs and such things. When Mr. Katz made these representations to me, I told him if his house would furnish us with goods, give us the exclusive sale for Dubuque, and the territory tributary, he could ship us a case of goods. He said, ‘The house will do so,’ and took the order. He said they would furnish us the goods as long as we pushed them. He [Katz] said they would furnish us the goods as long as we had a sale for them, and as we ordered them, and as long as we ordered them. The price was to be $28 per thousand. We were to make a large profit. After this agreement I gave an order to Mr. Katz for ten thousand cigars. Plaintiffs acknowledged the receipt of the order in writing.” If there was a contract, as alleged, it was made by an agent of the plaintiffs, and a ground of the motion is that it does not appear that such agent had authority to make the contract. It appears that one Katz was the agent of the plaintiffs, and as such was at Dubuque at the time the contract is alleged to have been made, and that he was selling plaintiff job lots of cigars, and a ten-thousand...