153 N.E. 127 | Ohio Ct. App. | 1926
The Auto Sun Products Company brought an action against the Cincinnati Auto Body Company to recover on two causes of action.
There is no controversy over the first cause of action.
The second cause of action states that the parties entered into an agreement for the manufacture of 5,750 windshields for automobiles, at an agreed price of $2.30 each; that of said order 3,000 windshields were delivered and paid for; that *252 plaintiff was ready, willing, and able to manufacture and deliver the balance of the order; and that on January 1, 1921, the defendant refused to accept and pay for any more windshields. Plaintiff claims it was damaged by reason of the purchase of special material in the sum of $1,419.49, to which it added its profit, making a total loss of $1,580.51. It further claims that it was damaged by reason of said failure in the total sum of $3,000, for which it prayed judgment.
The defendant stated three defenses. In its second defense it denied entering into an agreement for the manufacture by plaintiff and purchase by it of 5,750 windshields; claimed that the windshields manufactured and delivered were furnished pursuant to written orders from time to time, and that it received and paid for 3,000 windshields; and denied that there was any contract or that any contract was breached by its failure to take and pay for 2,750 additional windshields.
Defendant pleaded, by way of a third defense and counterclaim, that the windshields manufactured and delivered were incomplete and defective, that certain brackets and pulls were missing, and that it was damaged in the sum of $490.20, for which it prayed judgment.
The reply denied the allegations of the answer and cross-petition.
The jury found for the plaintiff below in the sum of $1,842.18. Judgment was entered on that verdict. This action is prosecuted to reverse that judgment.
The record discloses that a paper, plaintiff's exhibit E, marked "Blanket Order," is the basis *253 of much dispute in the testimony. While this has a bearing on the question at issue, it was for the jury to determine whether or not the parties entered into a contract, and, if so, whether it was breached, and by whom.
The conflict is such that only the authority provided by law, the jury, could settle the question, and, unless some principle of law has been violated, the verdict will not be disturbed on the weight of the evidence.
Counsel claim that the trial court erred in sustaining objections to the testimony of the witness Roth. He did not attempt to testify as to the issue whether or not a contract was entered into by the plaintiff and defendant, and we do not quite understand on what theory it is claimed the rejection of his testimony was error.
It is claimed that the trial court erred in two particulars in charging the jury.
The claim that the court did not state the issue is not tenable, as shown by that part of the charge copied below.
It is claimed that the charge was indefinite, in that there was a failure to state the law by which the jury were to be guided in determining whether or not a contract had been entered into. The court said:
"It is for you to determine whether or not there was any contract between the plaintiff and the defendant for the manufacture and delivery of 5,750 windshields with certain parts to accompany them, or whether the only contract there was between the parties was that the plaintiff was to furnish to the defendant windshields with accompanying *254 parts in accordance with orders to be given by the defendant to the plaintiff, and you are further to determine whether or not the windshields that were delivered were incomplete and did not have the certain brackets and pulls which were to accompany them."
There was a failure to charge, rather than an indefiniteness in the charge. The court did not state the law that in making a contract there must be parties, a subject-matter, consideration, a meeting of the minds, and so forth.
Counsel did not call the court's attention to the above, or to any other omission in the charge; nor did they request a charge on this or any other question.
If a court, in its charge, fails to cover all questions in the case, such failure is not a ground for reversal unless such omission is called to the attention of the court and a request made that it charge on the subject, which request is refused, with the further proviso that the jury are not misled by the charge. Columbus Railway Co. v. Ritter,
In this view of the case, based on our conclusion that the verdict and judgment are supported by sufficient evidence, the judgment of the court of common pleas will be affirmed.
Judgment affirmed.
BUCHWALTER, P.J., and HAMILTON, J., concur. *255
