Mann v. Taylor

• Decision Date: 08 October 1889
• Citation: 78 Iowa 355,43 N.W. 220
• Parties: MANN v. TAYLOR.
• Court: Iowa Supreme Court

78 Iowa 355

43 N.W. 220

MANN

v.TAYLOR.

Supreme Court of Iowa.

Oct. 8, 1889.

Appeal from district court, Clay county; LOT THOMAS, Judge.

Action for breach of contract in the sale of certain griddles. There was a judgment for plaintiff, and defendant appeals.Hughes & Chamberlain and H. S. Wilcox, for appellant.

Parker & Richardson, for appellee.

GRANGER, J.

1. The first five divisions of appellant's argument are devoted to assignments of error by the court in overruling motions to strike the petitions from the files, to strike out parts thereof, and to make the same more specific. As to these motions, it is sufficient to say that after the rulings thereon the defendant answered, and went to trial, which operated as a waiver of any error in the rulings. Coakley v. McCarty, 34 Iowa, 105.

2. The petition contains four counts; three of which state a cause of action based on the following:

“SPENCER, IA., Jan'y 6th, 1888.

This agreement, made this 6th day of January, 1888, between A. D. Taylor, of Spencer, Clay county, Iowa, and G. S. Mann, of the same town, county, and state, witnesseth: That the said A. D. Taylor hereby covenants and agrees, and by these presents does grant, the right to G. S. Mann to sell the Taylor Home Griddle, of which he is the owner of letters patent, for the state of Michigan, in the county of Lenawee, state of Michigan, on a certain royalty to be paid to the said A. D. Taylor. The said A. D. Taylor agrees to furnish the said G. S. Mann six hundred griddles,--five hundred No. 3 at fifty cents, and one hundred No. 4 at sixty cents,--free on board the cars at Youngstown, Ohio. The royalty on the above-named griddles--one hundred and fifty-eight dollars--is paid in advance, the receipt whereof is hereby acknowledged; and in case the said G. S. Mann buys the exclusive right to said territory, at a cost of two hundred and fifty dollars, between this date and the first day of April, 1888, then this royalty of one hundred and fifty-eight dollars to be applied on the payment of said territory, and the said A. D. Taylor agrees to give unto the said G. S. Mann a patent-right deed of said Lenawee county. It is further agreed that the said G. S. Mann agrees to pay the said Youngstown Stove Company, of Youngstown, Ohio, the balance due on six hundred griddles on delivery.

G. S. MANN,

A. D. TAYLOR.”

The allegations of the petition show that at the time of making the contract it was the intention of plaintiff to go to Lenawee county, Mich., to sell the same, and that they were only saleable for a short time in the winter season; that the parties both knew these facts, and contracted with reference to them; that plaintiff went from Clay county, Iowa, to Michigan, relying on the contract of defendant to furnish the griddles; and he seeks to recover special damages for his loss of time and expenses. And for that purpose the plaintiff's counsel asked him as a witness: “What, if anything, was said between you and Mr. Taylor in regard to the purpose for which these griddles were purchased?” Against the objection that it was immaterial, and tended to vary the terms of the contract by parol, the plaintiff was allowed to answer, and, we think, correctly. It in no manner changed or varied the terms of the contract. Its purpose was to place the court in a position to know what might reasonably have been contemplated by the parties at the time of making the contract as a result of a breach thereof. If it was then understood that as a result of the contract plaintiff would go to Michigan to secure the benefits of it to himself, defendant might well understand that a breach on his part would result in a loss of time and expenses to plaintiff, for which he should be liable. Such damages are not remote, but a direct result of the breach. There were other questions directed to the same purpose, such as: “What was said about the griddles? Was there conversation about the time of year in which these griddles could be sold? At what expense were you in selling these griddles?” These questions have all been examined, and we need not notice them separately. We cannot say that all of them are strictly material, but with few exceptions they are; and in no case do we find anything like error to the prejudice of the appellant.

3. Perhaps we should notice some of them wherein the objection is urged on different grounds in argument. One count of the petition charges the transaction in making the contract as fraudulent on the part of the defendant, and that the plaintiff was deceived by his representations that he had on hand the griddles for delivery; and on the trial the plaintiff was asked if he would have entered into the contract if he had known that the defendant did not have the griddles on hand to furnish. The defendant concedes that on the question of fraud it was proper to establish such fact, but urges that plaintiff could not properly testify to that fact directly; that it must be established by proof of other facts and the surrounding circumstances. While it is true, as a general rule, that ultimate facts or conclusions are not to be thus established, the rule has its exceptions, and the exceptions are based on the exceeding difficulty of making the proof in that manner. There is no more striking illustration of the rule than in cases where it is necessary to prove motives, or the reasons which prompt one to act, when these motives or reasons are to be established in his own behalf. The motives or reasons may exist, but without the possibility of proof, except by such direct testimony. The point under discussion may be a forcible instance. It is a question of what induced the plaintiff to make the contract. Who can know? Or what particular facts would show it? Or, perhaps, better, who could know, or what particular facts would show, how some particular statement or fact in the transaction affected his conduct? Where such facts become material, it is proper for the party to state them directly. The case of Watson v. Chesire, 18 Iowa, 202, in principle supports this rule.

4. One count of the petition sets out a cause of action based on an oral contract to deliver to plaintiff handles to be used with griddles, and without which the griddles were not saleable, and that there was a breach of the contract to deliver them; and the defendant, on the trial, offered to prove that they could be manufactured for two cents each at any tin-shop, which offer was refused. Plaintiff had bought and paid for these handles, and while in some cases a party is bound by care and a reasonable expenditure to avoid damage, we are referred to no case in which it is held that, where articles are thus bought, the vendee is bound to make a new purchase to relieve the vendor from a liability for a breach of his contract to deliver.

5. Appellant complains of the fourth instruction by the court, wherein it said to the jury that if the handles of the griddles were not forwarded as agreed, and the plaintiff was by reason of such failure delayed in the sale of the griddles and handles, and put to additional expense and loss of time by reason thereof, then the plaintiff would be entitled to recover as an element of...