Tarbox v. Gotzian

• Decision Date: 01 January 1873
• Parties: JASPER B. TARBOX and others v. CONRAD GOTZIAN.
• Court: Minnesota Supreme Court

20 Minn. 122

JASPER B. TARBOX and others

v. CONRAD GOTZIAN.

Supreme Court of Minnesota.

Appeal by defendant from a judgment of the district court, Ramsey county.

Davis & O'Brien, for appellant.

COPYRIGHT MATERIAL OMITTED

Mead & Thompson, for respondents.

BERRY, J.

The answer in this case alleged that defendant, being a merchant engaged in the sale of boot and shoe packs in St. Paul, plaintiffs in 1871, prior to December 4th, in consideration of defendant's promise hereinafter mentioned, agreed "to furnish, sell, and deliver" to defendant "all of the boot and shoe packs which the defendant should require of them in his business aforesaid, for the `season' ensuing next after said agreement, which said `season' as all the parties hereto then and there well knew, began in 1871, prior to December, and ended about January 15, 1872; that they agreed to furnish, sell, and deliver such articles, from time to time, throughout such `season,' in such quantities and at such times as the said defendant should require and request," at certain named prices, which defendant on his part promised to pay; that plaintiffs, pursuant to agreement, furnished and delivered to defendant a certain quantity of boot and shoe packs, but, although from time to time duly requested, wholly failed and refused to deliver other boot and shoe packs which he requested and duly required them to sell and deliver to the amount (at agreed prices) of $8,000; that defendant was thereby damaged (as in the answer set forth) in the sum of $800.

Defendant sets up this damage as a counter-claim, and the ruling of the court below in rejecting defendant's offer to prove the same is the first error assigned upon this appeal. But we are of opinion that the ruling was right according to the doctrine of Bailey v. Austrian, 19 Minn. 535, (Gil. 465.) There is the same want of "absolute mutuality of engagement" in this instance, as there was in that. The agreement upon the breach of which defendant founds his counter-claim was not a binding and valid contract. Its supposed breach, therefore, did not entitle defendant to damages.

As to the several errors which defendant alleges that the court committed in instructing and refusing to instruct the jury, the foregoing determination really disposes of them all in favor of respondents, as a little reflection will show.

The court instructed the jury to bring in a general verdict, and special findings upon two questions specifically submitted. The jury retired for consideration, having been directed by the court, with the consent of both parties, if they should agree after the adjournment, to seal up their verdict and bring it into court next morning. The jury (having agreed and thereupon separated) accordingly brought in a general verdict under seal for the plaintiffs. The clerk had entered in his minutes said general verdict reduced to form, and had read the same to the jury, but before the jury had been asked if it was their verdict, as required by section 216, c. 66, Gen. St., the counsel for the plaintiff called attention to the fact that the jury had not found upon the particular questions submitted as aforesaid, and requested the court to direct them to retire and find upon the same. The court so directed, defendant excepting. Thereupon the jury retired and returned their general verdict, as before, together with special findings in answer to the questions aforesaid. Said verdict and findings were received and recorded, defendant objecting. Defendant contends that the court erred in thus "allowing the jury after they had made up their verdict, sealed it, and separated,...