Rollins v. Duffy
Decision Date | 31 March 1886 |
Citation | 18 Ill.App. 398,18 Bradw. 398 |
Parties | ALONZO W. ROLLINS ET AL.v.OWEN DUFFY. |
Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding. Opinion filed March 8, 1886.
Messrs. WEIGLEY, BULKLEY & GRAY, for appellants; as to measure of damages, cited Frothingham v. Everton, 12 N. H. 239; Marfield v. Goodhue, 3 Comst. 62; Blot v. Boiceau, 3 Comst. 62; Parker v. Braucker, 22 Pick. 45; Brown v. McGraw, 14 Pet. 494; Field v. Farmington, 10 Wall. 149; Austin v. Crawford, 7 Ala. 342; Ainsworth v. Partillo, 13 Ala. 460; Hilton v. Vanderbilt, 82 N. Y. 591; Blair v. Childs, 10 Heisk. 199; Beadles v. Hartmus, 7 Baxt. 476.
As to evidence of efforts to compromise: Rollins v. Duffy, 14 Bradwell, 69; McCausland v. Wonderly, 56 Ill. 412; Wilson v. Sherlock, 36 Me. 297; Small v. Gilman, 48 Me. 515: Bonfield v. Parker, 36 N. H. 358.
Mr. EDWARD J. COMSTOCK and Mr. ELBERT H. GARY, for appellee; that the voluntary admissions of a party, no matter when or how made, if made with knowledge of the circumstances, are proper to be given in evidence, cited Robbins v. Butler, 24 Ill. 387; C. & N. W. Ry. Co. v. Boone, 44 Ill. 240; Ashlock v. Linder, 50 Ill. 159; 1 Greenleaf on Ev., § 192, note 2; Snow v. Batchelder, 8 Cush. 513; Arnold v. Johnson, 1 Scam. 196; Yundt v. Hartrunft, 41 Ill. 9.
This case was before this court at the October term, 1883, on an appeal by the plaintiffs from a judgment in favor of the defendant for $179 on his plea of set-off. The leading facts involved in the controversy are sufficiently stated in the report of the case as then presented. Rollins et al. v. Duffy, 14 Bradwell, 69. That judgment having been reversed and the cause remanded, the defendant filed two special pleas of set-off upon which issues of fact were taken by the plaintiffs, and on a trial before the court and a jury a verdict was rendered in favor of the defendant for $218.22, and for that sum and costs the defendant had judgment.
The first of said pleas of set-off alleges, in substance, that connected with the said several supposed premises in the declaration mentioned, and as a part of the same transaction, the plaintiffs, in consideration of the profits to be made by them, bargained and agreed with the defendant that if they could sell certain blankets belonging to the defendant for a sufficient price so that the defendant should receive for the same, after deducting all expenses and set-offs, the sum of forty-eight cents per pound, then and in that case and not otherwise, the plaintiffs were to direct the defendant to forward said blankets to the plaintiffs; and that the plaintiffs afterward, at divers times, directed the defendant to ship to them said blankets, and the defendant, confiding in said promise and agreement, shipped said blankets to the plaintiffs; but the plaintiffs did not regard their said agreement in this, that the said plaintiffs sold said blankets for such a price that the defendant did not receive therefrom the sum of forty-eight cents per pound, but a less sum; whereby the defendant suffered damages and loss to the amount of $1,000.
The second plea alleges that the plaintiffs bargained and agreed with the defendant, that if the plaintiffs could sell certain blankets of the defendant for such price that the defendant should receive therefor, after deducting all set-offs, the sum of forty-eight cents per pound, then and in that case the plaintiffs should notify the defendant to ship said goods, in consideration whereof the plaintiffs were to receive whatever sum the plaintiffs should sell the same for in excess of forty-eight cents per pound; and that afterward, at divers times, the plaintiffs notified the defendant that they had sold said goods and requested the defendant to ship the same, whereupon the defendant, confiding in said bargain and agreement, shipped to the plaintiffs said blankets, but the plaintiffs did not regard their agreement in this, that the said plaintiffs sold said blankets for a price such that the defendant did not receive forty-eight cents per pound therefor, but a much less sum, whereby the defendant suffered damage and loss to the amount of $1,000. Both pleas offer to set off said damages against the damages claimed in the declaration.
A question arose at the trial as to the measure of damages applicable to the case made by these pleas. Is it the difference between what the defendant realized for his goods and forty-eight cents per pound, or the difference, if any, between what the plaintiffs sold them for and the market price? If the plaintiffs guaranteed such sales as would net the defendant forty-eight cents per pound, then the defendant is clearly entitled to recover the difference between that price and what he has actually received. That, however, does not seem to be the contract set up in the pleas. No agreement is alleged to sell at a price which would net the defendant forty-eight cents per pound or any other specific price, the agreement set up being altogether silent as to how or on what terms sales should be made.
The agreement alleged is, to order goods when, and only when, they could be sold at the price named. This was not a guaranty, but an agreement limiting and defining the mode in which the plaintiffs were to discharge their duties as agents or factors of the defendant. A breach of this agreement, like any other breach of duty by factors, entitled the defendant to recover his actual damages. And what were such damages? If the plaintiffs had not ordered the goods, the defendant would have retained them, and could have disposed of them to other purchasers at the best market price. The difference, then, between what he could have thus obtained and what he has actually received, is the measure of his loss, and therefore the measure of his legal damages.
Where a factor is directed by his principal to sell at a given price, and he sells below that price, he is guilty of a breach of duty, and is liable to his principal for actual damages. As...
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Kuhn v. Kjose
...in the exclusion of irrelevant parts of conversations. Sims v. Moore, 61 Iowa, 128, 16 N. W. 58;Alsup v. Ray, 175 Ill. App. 621;Rollins v. Duffy, 18 Ill. App. 398. This court has held that only relevant parts of a writing may be introduced by the party first offering the instrument. Parnham......
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