O. M. Cockrum Company v. Klein
| Decision Date | 23 May 1905 |
| Docket Number | 20,539 |
| Citation | 74 N.E. 529,165 Ind. 627 |
| Parties | O. M. Cockrum Company v. Klein |
| Court | Indiana Supreme Court |
Rehearing Denied December 12, 1905.
From Gibson Circuit Court; O. M. Welborn, Judge.
Action by Philip Klein against the O. M. Cockrum Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p 590.
Affirmed.
Lucius C. Embree and Luther Benson, for appellant.
Louis T. Shanner, Thomas Duncan and Logsdon, Chappell & Veneman, for appellee.
This action was instituted by appellee to recover the price of some barrels and head-liners alleged to have been sold by him to appellant. The complaint is on an account in 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: It was not questioned that the plaintiff had sold and shipped to somebody the goods sued for. 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 were on his account, rather than on the account of the O. M. Cockrum Company. It is well settled that under § 555 Burns 1901, Acts 1897, p. 128, 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., R. Co. v. Hubbard (1888), 116 Ind. 193, 196, 18 N.E. 611; Louisville, etc., R. Co. v. Cauley (1889), 119 Ind. 142, 21 N.E. 546; Gates v. Scott (1890), 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, Gibson county, Indiana, and buying, keeping and selling at wholesale and retail all goods, wares and general merchandise," and it had for several years been doing business in Oakland City, chiefly as retail grocer. O. M. Cockrum was the president and active general manager of the concern, and the other stockholders were his mother, his wife, his sister and his son, fourteen years of age at the time of trial, all residents of the town. The plaintiff, a manufacturing cooper, resided and did business in Evansville, about twenty 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 was 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 thirty cents each, in reply to which letter the plaintiff received through the mail the following letter:
The 5,000 head-liners were shipped as ordered on the next day and on same day an additional 2,000 were shipped to Cockrum at Oakland City. The price of the head-liners was $ 1 per thousand. On September 24 plaintiff received another letter from Cockrum, ordering 1,000 barrels to be sent to Oakland City, which letter had been destroyed by fire, along with the other effects of his office, and which was written on...
To continue reading
Request your trial