Nat'l Distilling Co. v. Cream City Importing Co.
| Decision Date | 07 November 1893 |
| Citation | 56 N.W. 864,86 Wis. 352 |
| Parties | NATIONAL DISTILLING CO. v. CREAM CITY IMPORTING CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.
Action by the National Distilling Company against the Cream City Importing Company for goods sold and delivered. From an order denying a motion to strike out the first defense in the answer, and for failure to make an order on a motion to make the second defense more definite and certain, plaintiff appeals. Reversed.
The other facts fully appear in the following statement by PINNEY, J.:
The complaint in this action is for a balance of $1,148.72, due for goods, wares, and merchandise, to wit, alcohol, spirits, whisky, etc., sold and delivered to the defendant at its special instance and request. The answer is to the effect that the plaintiff, prior to the sale and delivery of the goods, entered into an agreement with divers firms and corporations residing in different states for the purpose of forming a trust or conspiracy, whereby they agreed, combined, confederated, and associated themselves together for that purpose, and wrongfully to interfere with the freedom of trade and commerce, so that it might acquire the full, absolute, and complete control and monopoly of all alcohol, spirits, and liquors manufactured in the United States, and the exclusive right to regulate, dictate, and control the amount manufactured, and the price thereof, and to render it impossible for dealers or consumers to purchase any such goods, etc., except from or through such trust, combination, etc.; that it was impossible for it to buy such goods through agents or members of said trust at their real market price by reason of such combination, but it was compelled to pay a greater price therefor, and for the purpose of recovering back such overpayments on its purchases it was obliged to enter into an agreement to purchase all such goods used in its said business for the period of six months succeeding the date of purchases from said trust or members thereof, and by so doing it would then receive the amount of such overcharges; that its business has been greatly injured by reason of said trust, etc., and by its business methods. And it was alleged on information and belief that said trust, confederation, or association, or the members thereof, were the real parties in interest in this action, and that the plaintiff is only an agent, member, or one of many partners residing in many and different states, and that the action should be dismissed, unless brought in the names of all such real parties. And as a separate defense, that between the 22d of June and 22d of October, 1892, the defendant purchased goods, wares, and merchandise to the amount as per bills rendered of more than $3,500; that they were billed and charged to this defendant at a greater price than the market value, and with each bill an agreement in writing was given to it, a copy of which is made an exhibit, for rebate of charges as before stated, that the spirits, alcohol, whisky, brandies, liquors, and compounded liquors purchased as aforesaid were of an inferior quality, and were not of the proof marked upon the bills furnished with the same, and upon which proofs the price therefor is fixed; that all of said goods were of less value than charged, and less than the market price, and that many of the goods were almost wholly worthless, whereby defendant was damaged, and his customers quit trading with him for that reason; that defendant had paid on said purchases a sum exceeding $2,400, and that the value of said goods, etc., purchased by the defendant was not greater than that sum. The plaintiff moved that the first defense of illegality should be stricken out as irrelevant and redundant, and that the second defense set up should be made more definite and certain by showing the date and amount of each item of goods which the defendant claims was defective, and by showing of what the defect consists, whether in quantity or quality, and the amount of damage claimed for each defective item or article. The court denied the motion to strike out the specified portions of the answer, with $10 costs, but did not make any order in respect to that part of the motion to make the second defense more definite and certain, and the plaintiff appealed.
George E. Sutherland, for appellant.
C. W. Briggs, for respondent.
PINNEY, J., (after stating the facts).
1. Taking the allegations of the first defense in their most liberal sense, it is apparent that they are irrelevant, and have no legal relation to the controversy between the parties to the action, which is whether the plaintiff shall recover the...
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...a commodity which they require and in giving such agent the exclusive right to do the buying. National Dist. Co. v. Cream City Importing Co., 86 Wis. 352, 56 N. W. 864, 39 Am. St. Rep. 902;Kellogg v. Larkin, 3 Pin. 123, 56 Am. Dec. 164;Wheeler-Stenzel Co. v. Am. Window Glass Co., 202 Mass. ......
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... ... 339, 42 L.R.A. 85; ... National Distilling Co. v. Cream City Co., 86 Wis ... 352, 56 N.W. 864, 865, ... ...
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...L.Ed. 502, are not in point. On the contrary, there is applicable herein this court's statement in Nat. Distilling Co. v. Cream City Imp. Co., 86 Wis. 352, 56 N.W. 864, 865, 39 Am.St.Rep. 902: “The plaintiff's cause of action is in no legal sense dependent upon or affected by the alleged il......