39 Iowa 484 | Iowa | 1874
I. The evidence in this case is. without mateifial conflict, except upon a single question. It tends to prove that plaintiffs are commission merchants in Chicago, Illinois, and the defendant is a grain buyer in Osceola, Iowa. Prior to May 29, 1872, plaintiffs solicited business from defendant, and on that day defendant telegraphed to plaintiffs to sell for him five thousand bushels of oats for June delivery; the telegram was received and acted upon, and on the next day the plaintiffs wrote the defendant that they had received his telegram, had placed the oats on the market, and had sold the same for forty-one cents per bushel, and suggested that defendant could ship as fast as he pleased. The defendant did ship the oats, in seven cars, on the 7th, 8th and 10th days of June, and the last car left Osceola on the 11th day of June; the usual time it takes a car to reach Chicago from there is about thirty-one hours; the precise time of the arrival in Chicago is not shown, but probably on June 10,11, 14, and 20, the first arrival being one car, and the others two each. In the pleadings there is no issue or question about the quantity of oats, but it is spoken of and treated as 5000 bushels; nor is there any evidence directed to the precise quantity, but one witness speaks incidentally of the quantity as being 4844 bushels.
At the time of making the order by defendant to sell for
Again, his instructions were to sell for June delivery, and the sale was made accordingly; this gave.him all that month in which tp deliver, and he had no advice that it was necessary to deliver earlier in order to secure the benefits of his contract; under such circumstances, and when he put all the oats in the cars during the first ten days of the month, a verdict against him upon the theory of his negligence could not be sustained, and it was not, therefore, error to refuse the instruction, even if its correctness as an abstract proposition of law be conceded. This, also, disposes of the third instruction asked, which embodied the same proposition stated in different language.
Further than. this, the court gave an instruction quite as ■favorable to the defendant as the one asked as above and refused, and one that covered the same ground substantially, and, at all events, invited to the same result. And to show that in the instructions given the plaintiffs were fairly treate'd at least, we copy it: “ If you find that the sale at that time to persons ordinarily good was dangerous, on account of a “ corner” causing fictitious prices, and that defendant knew of such “corner” and fictitious prices, and at the time was engaged in the business of dealing in oats and shipping to Chicago; and that plaintiffs, at the time of making the sale, reported the same to defendant, giving the prices sold for and stating to him that the market was held by a -syndicate or a ‘ corner; ’ then, in the absence of further instructions from defendant, or other neglect of the plaintiff, the plaintiff will not be held responsible on account of such dangerous condition of the market, or of the failure of the purchasers by reason thereof, provided you find the oats were sold by plaintiff in good faith, to persons who were responsible at the time of sale.” We are satisfied that the plaintiffs have no just ground for complaint in respect to the instructions.
III. The jury returned a verdict for defendant for $630.56. Among other causes assigned in the motion to set it aside was, that it was excessive. The court required the defendant to remit the sum of $44.52, or a new trial would be granted. A remittitur was entered and a judgment was rendered on the verdict for $586.04. Upon calculation, we find that to be just the sum that 4844 bushels of oats would bring at 41 cents per bushel, after deducting the $1,400, paid on defendant’s draft. This, of course, leaves the plaintiffs nothing for their com-, missions or for the freights paid. There is no direct evidence upon the subject of commissions or their value, or as to who paid the freight. Certain freight bills were admitted in evidence for the purpose of showing the date of the arrival of the cars of oats, and these also show that plaintiffs were debited to the railroad company, with charges on the oats aggregating $465.03. The account the plaintiffs sued upon credited this defendant with the net proceeds of sale of the same oats at 27 cents per bushel, at $689.06. By a fair construction of the defendant’s answer, he does not controvert the plaintiff’s claim or account, if the sale was rightly made at 27 cents per bushel; but he insists that he is, by reason of the plaintiff’s negligence or bad and unskillful conduct, entitled to 41 cents per bushel. The oats, 4844 bushels, at 27 cents, would yield $1,307.88, or $618.82 more than the defendant was credited with, in the account sued on, as the net proceeds of the oats. And this sum of $618.82, is $153.79 more than the aggregate of the freight bills debited, or charged in the bills introduced in evidence, to the plaintiffs. This would show, if there were no other charges than for the freight, that the plaintiffs had charged the amount last named above $153.79, for their commissions.
Under 'the pleadings and evidence we can hardly do more than allow plaintiffs a further remittitur of the amount of the freight bills to-wit: $465.03. There being no testimony whatever as to the value of commissions, and the jury having found
Reversed.