83 P. 1103 | Kan. | 1905
The opinion of the court was delivered by
The plaintiff, W. E. Sloan, who was doing business under the name of W. E. Sloan & Co., recovered judgment for damages resulting to him from a breach of contract by defendants, and they prosecute error. The plaintiff pleaded an offer made to him at Wichita, Kan., by the defendants at New Castle, Colo., to sell and ship to him at Wichita six cars of potatoes of a particular kind and quality, for a given price, shipments to begin on or about October 26, 1903, and his acceptance of defendants’ proposition, and a neglect and refusal by the defendants to comply with the contract, in consequence, of which plaintiff was damaged $315. The answer was a general denial.
It would serve no purpose to discuss the facts or the evidence in this case; suffice it to say that the evidence supports all of the material findings of the jury,
Contentions of the plaintiffs in error not disposed of by the above conclusion are, first, that the court misconceived the theory upon which the action was brought, and consequently his instructions were not applicable. Upon this question it is contended that the action was brought and tried on the theory that the plaintiff was selling potatoes on commission; that, therefore, the failure of the defendants to fulfil their contract could only result in a loss to plaintiff of his commission for selling them; and that the instructions were based on the theory that plaintiff claimed to be a dealer and his damages should be measured by the difference between the contract price of the potatoes and the market value at the time and place they were to be delivered. The theory of the action was not misconceived by the court. The action was not brought by plaintiff as a commission merchant, but as an independent dealer.
Another contention is that the court erred in copying the petition and exhibits into the instructions and submitting them as a whole to the jury. It is much better practice for the court succinctly to state the issues to the jury; in many cases the pleadings do not strictly conform to the code in simplicity, and therefore tend to confuse rather than to elucidate the questions before the jury. (Railroad Co. v. Eagan, 64 Kan. 421, 67 Pac. 887; Stevens v. Maxwell, 65 Kan. 835, 70 Pac. 873; Myer v. Moon, 45 Kan. 580, 26 Pac. 40; Railroad Co. v. Dalton, 66 Kan. 799, 72 Pac. 209.) In this case, however, the petition was short, and the issues were distinctly stated in the instructions to the jury. Therefore, it cannot be said that it was prejudicial error to incorporate a copy of such a petition in the instructions.
Another contention is that the amount awarded the plaintiff is grossly excessive, tending to indicate that it was the result of prejudice, and for that reason the