Silurian Mineral Springs Company v. Kuhn & Company

• Decision Date: 22 July 1902
• Docket Number: 12,057
• Citation: 91 N.W. 508,65 Neb. 646
• Parties: SILURIAN MINERAL SPRINGS COMPANY v. KUHN & COMPANY
• Court: Nebraska Supreme Court

91 N.W. 508

65 Neb. 646

SILURIAN MINERAL SPRINGS COMPANY v. KUHN & COMPANY

No. 12,057

Supreme Court of Nebraska

July 22, 1902

ERROR from the district court for Douglas county. Tried below before BAXTER, J. Reversed.

REVERSED AND REMANDED.

Crane Crane & Erwin and J. J. Boucher, for plaintiff in error.

A. C Troup and Howard H. Baldrige, contra.

BARNES C. OLDHAM and POUND, CC. concur.

OPINION

BARNES, C.

This action was commenced in the district court for Douglas county by the plaintiff in error to recover $ 127.50 from the defendant in error on account for certain mineral waters sold and delivered to the defendant by the plaintiff. The petition was in the ordinary form to recover on account for goods sold and delivered at an agreed price. The defendant by its answer admitted the sale and delivery of the goods but denied that it was indebted to the plaintiff in any sum whatever. For a further defense it was alleged in the answer that the plaintiff, at the time the goods were ordered, agreed to do certain advertising in order to create a market and a demand for the mineral waters so sold to the defendant, which advertising was to be done by visiting physicians of Omaha, sending them letters, blotters and cards setting forth the medicinal properties of the waters, etc.; and their attention was to be called to the fact that said waters could be had at the defendant's drug store. It was further alleged that the defendant furnished plaintiff the names of the leading physicians of Omaha for that purpose; that plaintiff only partially complied with its contract in that behalf; and that by reason of such failure to perform its contract on the part of plaintiff, defendant has only been able to dispose of and sell four cases of said mineral water at the price of $ 20, and has been unable to sell and dispose of the rest of the consignment; that had plaintiff kept and performed its contract defendant could and would have sold seventeen cases of said mineral water still on its hands at $ 8.50 per case, or $ 144.50, and the remaining four cases at $ 4.50 per case, which was the reasonable market price therefor, and on the whole consignment it would have made a profit of $ 51, which represents its damages for the failure of the plaintiff to keep and perform its contract, and for which sum it prayed judgment against the plaintiff. It was further alleged in the answer that defendant had offered to return all of the said mineral water still in its possession, and unsold, to the plaintiff, and pay it the sum of $ 20 in settlement and satisfaction of its claim, that it was still ready and willing to do so, and that plaintiff had refused to accept the same. To this answer plaintiff replied by a general denial. On these issues the cause was tried to a jury, and on the plaintiff's motion the court directed a verdict for the plaintiff for the full amount of its claim, and said verdict was accordingly rendered. Afterwards, on defendant's motion for a new trial, the court set the verdict aside and granted a new trial; and that order of the court is assigned as error herein. Thereupon the cause was tried again to a jury, and after being submitted under written instructions, the jury returned a verdict as follows (omitting title):

"We, the jury duly impaneled and sworn to try the issue joined between the said parties, do find for the said defendant, and do assess its damages against said plaintiff at $ .

J. W. MARTIN, Foreman.

"We, the jury, do find that defendant's profits would have amounted to the sum of $ 49.50; that he has already received the sum of $ 30.00 from the proceeds of sales of mineral water in question, subtracting that amount from net amount of profits, namely, $ 49.50, leaving a balance of $ 19.50 due the defendant, which amount we consider the mineral water now in the possession of Kuhn & Co. to be worth.

J. W. MARTIN, Foreman."

The court thereupon rendered the following judgment:

"It is therefore considered by the court that the above entitled action be, and the same is hereby dismissed; and that the defendant go hence without day and recover of and from the said plaintiff its costs herein expended taxed at $ , for which execution is hereby awarded."

A motion for a new trial was filed and overruled, and from the said judgment and proceedings plaintiff prosecutes error to this court.

1. The plaintiff claims that the court erred in giving its fourth instruction to the jury, which is as follows: "The jury are instructed that they are first to consider and determine what the contract between the plaintiff and defendant was, and what, if any, were the inducements which led the defendant to make the contract with the plaintiff, and if you find from the evidence that the defendant made the contract as alleged in the petition by plaintiff, but that the defendant was induced to make the contract under the express agreement on the part of plaintiff, that the plaintiff by and through his agents would create a market for said goods by frequently visiting personally the physicians of the city of Omaha, referred to in the testimony, with the view of inducing them to prescribe said mineral water for their various patients and informing them that the same was kept in stock at the defendant's store, and if you further find that said agents and representatives of the plaintiff failed to personally visit the said physicians in the city of Omaha, referred to in the testimony, with the view of inducing them to prescribe said mineral water for their various patients, and failed on its part to comply with any material representations which you may find were made by the agents of the plaintiff company to the defendant, and which induced the defendant to enter into said contract, then, in that case, the plaintiff can not recover from the defendant upon its said contract." By this instruction, the jury were told in effect, that although defendant had ordered the mineral water at the agreed price as set forth in the petition, and received, retained and sold a portion of it, yet if the plaintiff had failed to carry out its agreement to advertise the same by the means and in the manner alleged in the answer, then plaintiff could recover nothing on the claim sued on. The learned trial judge certainly was mistaken as to the law of this case. Under the pleadings and the evidence the plaintiff was entitled to recover the amount of the contract price of the goods sold and delivered. If the answer stated a defense, it was in the nature of a counter-claim, and at most the jury would only be allowed to deduct from the agreed price of the mineral water the damages which they might find defendant had sustained by reason of plaintiff's failure to carry out its agreement made at the time this consignment was ordered. We hold that the giving of this instruction was reversible error.

2. Plaintiff alleges that the court erred in giving its sixth instruction to the jury, which is as follows: "The jury is further instructed, if it finds from the evidence that the plaintiff has failed to comply with its contract or failed to comply with the material promises or inducements which you may find induced and led the defendant to enter into the contract, plaintiff can not recover upon its contract; and in such case the defendant is entitled to recover from the plaintiff the profits which the defendant would have made if the plaintiff had complied with all the inducements and agreements on its part to be performed, but, inasmuch as the defendant has in its possession some of the cases of mineral water sent by plaintiff to defendant, you are to inquire what, if anything, is the value of the mineral water now on hand in the possession of the defendant, and how much, if anything, has been realized by the defendant on the sale of mineral water during the time plaintiff was carrying out its contract; add these amounts and from this sum you must subtract; and if you find the defendant's damages exceed in amount these sums, then the defendant is entitled to a verdict for the difference, provided you find for the defendant. If on the contrary the amount realized by the defendant on the sale of the mineral water during the time plaintiff was engaged in carrying out its contract, added to the value, if anything, of the mineral water now in possession of the defendant exceeds the profit which the defendant would have made on the sale of mineral water if the plaintiff carried out...