Waltham Piano Co. v. Freeman

• Citation: 141 N.W. 403,159 Iowa 567
• Parties: WALTHAM PIANO CO. v. FREEMAN.
• Decision Date: 15 May 1913
• Court: United States State Supreme Court of Iowa

159 Iowa 567

141 N.W. 403

WALTHAM PIANO CO.

v.FREEMAN.

Supreme Court of Iowa.

May 15, 1913.

Appeal from District Court, Tama County; C. B. Bradshaw, Judge.

Action for purchase price of pianos, in which a counterclaim was interposed. Judgment was entered for less than plaintiff prayed, and therefrom it appeals. Reversed.Willett & Willett, of Tama, and Crosby & Fordyce, of Cedar Rapids, for appellant.

Redmond & Stewart, of Cedar Rapids, and Struble & Stiger, of Toledo, for appellee.

LADD, J.

The defendant handles pianos as jobber and retailer at Cedar Rapids. By written contract he purchased 15 pianos of plaintiff, who shipped them to Toledo, where the latter undertook to conduct a special sale thereof, and to sell 60 per cent. of the same. It was to receive for such service 10 per cent. of the gross amount of the business done, and defendant was to furnish the board of plaintiff's salesman, advertising, and other expenses. Pianos were not disposed of as anticipated, and a controversy arose, whereupon this action for the purchase price of the pianos, $1,685, commissions in the sum of $47.50, and expenses amounting to $32.88 was begun aided by attachment. The defendant admitted his liability for the pianos, but put in issue the claims for expenses and commissions, and by way of counterclaim alleged that the writ of attachment was sued out wrongfully and maliciously, because of which he prayed both actual and exemplary damages. Allowance for certain expenses also was asked. Several errors are assigned, and these may be disposed of in the order argued.

1. The court withdrew from the jury the claim for commissions. By the terms of the contract plaintiff was entitled to a “commission of ten per cent. on the gross amount of all business done” at the special sale while being conducted by it, and the evidence tended to show that at least one and possibly two pianos were sold during that period. True, plaintiff's manager, though participating in negotiating these sales, did not complete them, but this was not essential in order to have earned the commission. It was enough if the sales were made in connection with and as a part of the business transacted at the special sale, and the evidence was sufficient to carry this issue to the jury. Of course, it should have been submitted in connection with the issues raised as to which party actually breached the contract by which the special sale was discontinued. The evidence may be more definite as to when these sales were effected on another trial, and if it appears that these occurred during the special sale, and that plaintiff did not breach the contract under which the special sale was being conducted, then these items should be allowed.

2. One of the items of damages alleged in the counterclaim was $50 for services of an attorney in procuring the releases of the writs of attachment. In support thereof the only evidence adduced was that of defendant, who testified: “I proceeded to get a bond and release the attachment. The bond cost me $30. I was to the expense of $50 for attorney fees arranging the matter. There was a great deal of telegraphing and telephoning, and I haven't got the statement of that.” The particular services rendered by the attorney are not disclosed, nor was there any evidence as to the reasonable value of the services rendered.

[1] To justify the allowance of this item, it must have appeared, not only that the services were reasonably necessary in securing the release of the levy, but also the reasonable value of such services. Massena Savings Bank v. Garside, 151 Iowa, 168, 130 N. W. 918.

It is suggested that these were matters familiar to the jury, and for this reason proof of value was not...