S. Rosenberger & Co. v. W. R. Marsh & Co.
| Decision Date | 07 April 1899 |
| Citation | 78 N.W. 837,108 Iowa 47 |
| Parties | S. ROSENBERGER & COMPANY v. W. R. MARSH & COMPANY AND J. W. ALLINGTON, Appellants |
| Court | Iowa Supreme Court |
Appeal from Hamilton District Court.--HON. D. R. HINDMAN, Judge.
ACTION at law to recover the purchase price of certain cigars sold and delivered the defendants. Defendants admit the account but plead a counterclaim for breach of the contract under which the cigars were sold. Trial to a jury. Verdict and judgment for plaintiff, and defendant Allington appeals.
Affirmed.
George Wambach for appellant.
J. L Kramrar for appellee.
Plaintiff is a manufacturer of cigars, doing business in the city of Cincinnati, Ohio. Defendants are jobbers of cigars, bottled goods, and furniture. In November of the year 1894, plaintiff, through its agent, one Towson, sold the defendants a certain lot of cigars, and continued to supply defendants with this same brand, known as the "Imperial Sweeper," until January 3, 1896, at which time plaintiff refused to furnish any more of its goods bearing the above mentioned brand. During the time mentioned, defendants received about one hundred and twenty thousand cigars from the plaintiff. The refusal to furnish any more cigars was based upon the unsatisfactory manner in which defendants were settling their bills, and their alleged cutting of prices. Defendants contend that they were given the sole and exclusive agency for the hitherto mentioned brand of cigars for northern Iowa, and that they were to have this agency so long as they had any trade for the goods; that plaintiff, without cause or excuse, revoked the agency, and placed it with a jobbing house in the city of Dubuque, to their damage. Plaintiff denies that it gave an exclusive agency, or that it promised to supply the goods for any definite length of time. On these issues the case was tried to a jury, resulting in a verdict and judgment for plaintiff for practically the full amount of its claim. As there is a conflict in the evidence relating to the alleged contract of agency, and as the jury evidently found that there was no such agreement as defendants claim, that decision must be treated as a finality, and the verdict sustained, unless we find such errors committed during the trial as entitle the defendant to a reversal of the case.
Turning to the assignments of error, we find that they relate to rulings on evidence and the instructions given by the court and of these in order as argued: Damages are asked in the counterclaim for expenses of traveling men in introducing the goods, increase in price paid for goods to fill orders taken before plaintiff revoked the agency, and loss of trade and business. On the trial, defendants offered to show that, at the time the alleged contract of agency was made, plaintiff's agent offered to turn over to them a prior order he had taken for the Imperial Sweeper cigars; that plaintiff failed to turn this order over; and that they lost thereon, the amount of which they asked to recover as part of their damages. It is manifest that these damages were special, and not necessarily incident to the breach of contract complained of. Without an allegation of such damages, defendants were not entitled to have them considered. At the time the evidence was excluded, defendants' counsel said: "I desire to amend my answer to cover this." This is all that appears with reference to the amendment. No such amendment was ever offered. If it had been, we do not think there was error, for it was within the discretion of the court to permit or refuse an amendment offered during the course of the trial. But, aside from all this, the error, if any, was without prejudice, for the reason that the jury found there was no breach of contract. Error in...
To continue reading
Request your trial