Louis Cook Manuf'g Co. v. Randall

• Decision Date: 07 December 1883
• Citation: 17 N.W. 507,62 Iowa 244
• Parties: LOUIS COOK MANUF'G CO. v. RANDALL AND ANOTHER.
• Court: Iowa Supreme Court

62 Iowa 244

17 N.W. 507

LOUIS COOK MANUF'G CO.

v.RANDALL AND ANOTHER.

Supreme Court of Iowa.

Filed December 7, 1883.

Appeal from Polk circuit court.

Action at law upon an account for certain buggies and other goods ordered by defendants of plaintiff. There was a judgment upon a verdict for plaintiff for a part of the claim, from which it appeals. The facts of the case are stated in the opinion.William Phillips, for appellant.

Nourse & Kauffman, for appellees.

BECK, J.

1. The petition alleges that plaintiff is a corporation existing under the laws of the state of Ohio, and succeeded to the business of Louis Cook in the manufacture and sale of buggies and other goods; that defendants, who had made purchases of Louis Cook, ordered from him certain goods. As the plaintiff had succeeded to his business, the order was by him delivered to plaintiff to be filled, which was done. This action is brought to recover the value of the goods delivered to defendant by plaintiff under such order. The defendants, in their answer, admit the order for the goods and the receipt thereof, but allege that the purchase was made under a contract with Louis Cook, to the effect that buggies and other goods ordered should be furnished at prices named, upon 30, 60, 90, and 120 days, when ordered in car-load lots, and that defendants were to have the exclusive right to sell the articles manufactured by plaintiff in Polk and five adjacent counties of the state. This contract was expressed in a written order given by defendants, which was accepted by Louis Cook. Under the contract defendants ordered the goods mentioned in the account sued upon, which were furnished to defendants by plaintiff under an order to Louis Cook.

The answer, admitting the receipt of the goods specified in the account sued on, alleges that the contract is in the possession of Cook or plaintiff, or is lost or destroyed; that plaintiff assumed its performance, but did violate its conditions by selling like goods described therein to other persons within the counties mentioned in the contract; by refusing to sell upon the time provided for in the contract; by refusing to sell to defendants more than one car-load at one time; and by refusing to ship to defendants goods by the car-load until the bills for prior shipments to them had been paid. It is alleged that by reason of their breach of the contract between the parties defendant sustained damages to the amount of $4,000, which they plead as a counter-claim to plaintiff's action. Plaintiff, in its replication, denies that defendant and Louis Cook entered into a contract of the character alleged in defendant's answer, and denies that any such order as is pleaded therein was given by defendants to Louis Cook, or ever existed. It admits that it succeeded to the business of Louis Cook, but denies that it assumed his contracts and liabilities set up by defendants. All other allegations of the answer are denied. Other allegations of the pleading need not be here recited. It will be observed that the account sued on is admitted, and the only issues between the parties involve the counter-claim of defendants.

2. We will consider the objections to the judgment relied upon by plaintiff in the order of their discussion by counsel. It is first objected that there was no competent evidence submitted at the trial tending to establish the contract. The contract itself was not introduced in evidence. Defendants testified that it was reduced to writing in the form of an order written by Cook and signed by defendants, which was orally accepted by Cook before he transferred his business to plaintiff. It was kept by Cook, or left in his possession. Upon this evidence defendants were permitted to prove the contents of the instrument. If it be conceded that when the proof was offered the evidence was insufficient to show the loss of the instrument, or that proper efforts were not made to cause its production at the trial by Cook, yet, in view of the answer of plaintiff denying the existence of the contract, and the testimony of Cook subsequently given that he had not at the time and never had possession of the instrument, and that it in fact never had an existence, there is no prejudicial error in admitting proof of its contents at the time such evidence was admitted. Cook's evidence, if given at or before the time the secondary proof was admitted, would have been sufficient to authorize it. As he subsequently supplied the required proof, no prejudice resulted from admitting the secondary evidence at the time it was introduced. We will not reverse a case upon the ground that evidence is not admitted in the proper order, or for the reason that a fact which should be proved in the first instance by one party, is established by the testimony of the other.

Counsel for plaintiff insists that as Cook was not a party to the suit no parol evidence of the contents of the instrument was competent therein. We think this position applied to the facts of this case is not supported by the authorities cited by counsel, nor by principle. Under the pleadings of the case, and the evidence of defendants, their theory of the case is that the plaintiff, by undertaking to perform Cook's contracts, as successors in his business, became bound by the contract with them; that it, in fact, became plaintiff's contract. It was, under this theory, necessary for defendants to establish, first, that the contract was entered into, and then to show that plaintiff assumed its performance. In order to establish the original contract they were compelled to resort to secondary evidence, as we have first shown. The...