Ladoga Canning Co. v. Corydon Canning Co.

• Decision Date: 07 June 1912
• Docket Number: No. 7,518.,7,518.
• Parties: LADOGA CANNING CO. v. CORYDON CANNING CO.
• Court: Indiana Appellate Court

52 Ind.App. 23

98 N.E. 849

LADOGA CANNING CO.

v.CORYDON CANNING CO.

No. 7,518.¹

Appellate Court of Indiana, Division No. 2.

June 7, 1912.

Appeal from Circuit Court, Harrison County; C. W. Cook, Judge.

Action by the Ladoga Canning Company against the Corydon Canning Company. From a judgment granting insufficient relief, plaintiff appeals. Affirmed.

U. C. Stover and Wilson & Self, for appellant. Evan B. Stotsenburg and John H. Weathers, for appellee.

ADAMS, P. J.

Action by appellant against appellee on the following contract: “New Albany, Ind. May 19, 1906. Sold to the Ladoga Canning Company, Ladoga, Indiana, 5,000 cases Futures Standard Indiana Tomatoes, threes, at 80¢ per dozen, f. o. b. factory, Corydon, Indiana; less one and one half per cent. (1 1/2%) for cash in ten days. Goods to be of 1906 packing and delivery to be made as soon as packed. Six months guarantee against swell. The seller hereby agrees to allow buyers the privilege of using their labels on 2,000 cases, with $1.00 per thousand label allowance. The remaining 3,000 to be under the seller's labels. In case of crop failure, we are not liable after we have filled 80% of this contract. In the event we are not able to fill 80% we reserve the right to furnish other standard goods instead, or to pay the difference between the contract price and the market price, should there be an advance at the time of delivery.”

This contract was signed by the parties, and it is averred in the complaint that appellee failed and refused to carry out the terms of the same; that appellant has been ready and willing to receive the goods purchased under said contract; that, upon appellee's failure to deliver the goods contracted for, appellant was obliged to go into the open market and purchase goods of the same quality purchased from appellee, and was obliged to pay the market price of 95 cents per dozen cans for such goods; that appellant would have made a profit of 15 cents per dozen cans had appellee fulfilled its contract agreement, but, on account of its failure so to do, appellant was damaged in the sum of $1,500, for which judgment is demanded.

The appellant answered the complaint in 15 paragraphs, of which the first was in denialand the second a plea of payment. Other paragraphs of answer were challenged by demurrer, and the twelfth, thirteenth, and fifteenth were held good. Trial by jury, finding and judgment for the appellant in the sum of one cent, and judgment in favor of appellee for costs.

With their general verdict the jury returned answers to 16 interrogatories. Appellant filed its motion for judgment on the answers to the interrogatories, notwithstanding the general verdict, for $1,500. This motion was overruled and renewed for the sum of $1,200. Appellant also filed a motion for a new trial and a motion for a nunc pro tunc entry. The overruling of each of these motions, together with the overruling of appellant's demurrer to the fifteenth paragraph of answer, constitute the errors relied upon for reversal and not waived by failure to argue.

By the answers to the special interrogatories, the jury found that the parties entered into the contract herein set out, and that appellee did not deliver the tomatoes contracted for, and did not deliver any in compliance with the terms of sale except samples; that the packing season at Corydon, Ind., closed October 10th; that appellee notified appellant on October 10th that it would ship to appellant 2,000 cases, provided appellant would accept the same in full of said contract; that appellant did not accept said proposition; that the market price of canned tomatoes per dozen cans of the kind and quality mentioned in the contract at Corydon, Ind., “on or about the 10th of October, 1906, and for some days thereafter,” was 95 cents per dozen; that the market price at Ladoga, Ind., at the same time was “supposed to be 95 cents per dozen”; that appellee has not paid appellant the difference between the contract price and the market price; that appellant refused to accept 2,000 cases under said contract, but not the whole; that appellee has not paid appellant in full for the demand sued on; that no delivery was made except samples to Ladoga and St. Louis; that appellee on or about September 28th had 5,000 cases of tomatoes packed so that the same could have been shipped to appellant; that before September 25, 1906, appellee had 5,000 cases of tomatoes ready to be delivered to appellant.

By the general verdict the jury found in favor of appellant upon all the material allegations of its complaint and against appellee on all the material averments of its affirmative defenses, but found that appellant was only entitled to nominal damages. In other words, the verdict is a general finding that there was a breach by appellee of the contract sued on, but that appellant was not injured thereby.

[1] It is well settled that, where a jury with their general verdict return answers to interrogatories, the general verdict will stand unless the facts specially found are inconsistent therewith. It is also the rule that, where the general verdict and the special findings can be reconciled with each other under any state of facts provable under the issues, the general verdict will stand. Southern Indiana Ry. Co. v. Utz, 98 N. E. 375, and cases cited. Nothing will be presumed in aid of the special findings of a jury, but every reasonable presumption will be indulged in favor of the general verdict. Louisville, etc., Ry. Co. v. Creek, Adm'r, 130 Ind. 139, 142, 29 N. E. 481, 14 L. R. A. 733;Shoner v....