O.M. Cockrum Co. v. Klein

• Decision Date: 23 May 1905
• Docket Number: No. 20,539.,20,539.
• Citation: 165 Ind. 627,74 N.E. 529
• Parties: O. M. COCKRUM CO. v. KLEIN.
• Court: Indiana Supreme Court

165 Ind. 627

74 N.E. 529

O. M. COCKRUM CO.

v.KLEIN.

No. 20,539.¹

Supreme Court of Indiana.

May 23, 1905.

Appeal from Circuit Court, Gibson County; O. M. Welborn, Judge.

Action by Philip Klein against the O. M. Cockrum Company. From a judgment for plaintiff, defendant appealed to the Appellate Court, from whence the cause was transferred to this court, under Burns' Ann. St. 1901, § 1337u. Affirmed.

L. C. Embree and Luther Benson, for appellant. Thomas Duncan, L. T. Shanner, and Logsden, Chappell & Veneman, for appellee.

HADLEY, J.

This action was instituted by appellee to recover the price of some barrels and headliners alleged to have been sold by him to appellant. The complaint is on accountin the usual form. There are three answers: First, the general denial; the second alleges payment; and the third sets up that appellee accepted the note of O. M. Cockrum in payment. Reply by denial. There was a trial by jury, and a verdict and judgment for appellee for full price of the goods. The overruling of appellant's motion for a new trial presents the only questions for decision.

Among the reasons for a new trial was the refusal of the court to submit to the jury two interrogatories which follow: “(1) Were any of the barrels ordered from the plaintiff otherwise than by letters written by O. M. Cockrum, and signed with his individual name? (2) If you answer the next preceding interrogatory in the affirmative, state how and by whom they were ordered?” It was not questioned that the plaintiff had sold and shipped the goods sued for to somebody. Nor was it questioned that the goods were ordered by O. M. Cockrum. But the real controversy was whether the sale was to O. M. Cockrum Company (appellant), or to O. M. Cockrum; the latter being the active president and general manager of the company that bore his name. It is therefore manifest that, if the jury had answered that all the barrels ordered from the plaintiff were ordered by letters written and signed by O. M. Cockrum in his individual name, the finding would have amounted to nothing more than an evidentiary fact that the order and sale was on his account, rather than on that of the O. M. Cockrum Company. It is well settled that under section 555, Burns' Ann. St. 1901, it is not proper to submit interrogatories to the jury calling for a finding upon some items of evidence. Such a course would place it within the power of the court, upon the request of either party, to require the jury to return with their verdict a full statement of the evidence. “What the statute declares and intends is that the jury may be required to find material and substantive facts.” Louisville, etc., Co. v. Hubbard, 116 Ind. 193, 196, 18 N. E. 611;Louisville, etc., Co. v. Cauley, 119 Ind. 142, 21 N. E. 546;Gates v. Scott, 123 Ind. 459, 24 N. E. 257. The court did not err in refusing to submit the above interrogatories to the jury.

The only other question argued in this court is that the verdict is not sustained by the evidence and is contrary to law. It appears from the evidence that a corporation known as the O. M. Cockrum Company was organized under the laws of this state for the purpose of “keeping a general store in the town of Oakland City, in Gibson county, Indiana, and the buying, keeping, and selling at wholesale and retail of all goods, wares, and general merchandise,” and had for several years been doing business in Oakland City, chiefly as retail grocers. O. M. Cockrum was the president and active general manager of the concern, and all the other stockholders were his mother, his wife, his sister, and his son, 14 years of age at the time of trial, all residents of the town. The plaintiff, being a manufacturing cooper, resided and did business in Evansville, about 20 miles distant. O. M. Cockrum had for six or eight seasons bought and sold apples on his own account, and had, the season before, ordered barrels from the plaintiff in his individual name, but it does not appear that the plaintiff knew or should have known that he was trading on his separate account. The plaintiff testified that he was acquainted with the O. M. Cockrum Company, had at different times visited its place of business, and knew that O. M. Cockrum had charge of and transacted its business, and knew also from general report that the corporation was solvent, and O. M. Cockrum insolvent. In the early part of September, 1902, O. M. Cockrum telephoned the plaintiff and inquired the price of barrels, to which inquiry the plaintiff replied that he would quote him prices by letter. The plaintiff promptly wrote, and quoted barrels at 30 cents each, in reply to which letter the plaintiff received through the mail the following letter:

“O. M. Cockrum Company, Grocers. Oakland City, Ind. Sept. 11, 1902. Mr. Phillip Klein-Dear Sir: Yours of to-day received. Am sorry you cannot make the bbl. for less than that. We can get them in Princeton for 26 cents, and we will use about 5,000 and the difference is quite an item. But please ship us to Princeton 5,000 headliners, ship the same to me at Princeton, Ind. Yours, O. M. Cockrum Co.”

The 5,000 headliners were shipped as ordered on the next day, and on same day an additional order for 2,000 was shipped to Cockrum at Oakland City. The price of the headliners was $1...