52 Ind. App. 23 | Ind. Ct. App. | 1912
Action by appellant against appellee on the following contract:
“New Albany, Ind. May 19, 1906. Sold to the Ladoga Canning Company, Ladoga, Indiana, 5000 cases Futures Standard Indiana Tomatoes, threes, at 80e per dozen, F. O. B. Factory, Corydon, Indiana; less one and one half per cent (1½%) for cash in ten days. Goods to be of 1906 packing and delivery to be made as soon as packed. Sis months guarantee against swell. The seller hereby agrees to allow buyers the privilege of using their labels on 2000 cases, with $1.00 per thousand label allowance. The remaining 3000 to be under seller’s*25 labels. In case of crop failure, we are not liable after we have filled 8.0%. of this contract. In event we are not able to fill 80% we reserve the right to furnish other standard goods instead, or to pay the _ difference between the contract price and the market price, should there be an advance at the time of delivery.”
This contract was signed by the parties, and it is averred in the complaint that appellee failed and refused to carry out the terms thereof; that appellant has been ready and willing to receive the goods purchased under said contract, and that on appellee’s failure to deliver the goods contracted for appellant was obliged to go into the open market ¿nd purchase goods of the same quality purchased from appellee, and was obliged to pay the market price of ninety-five cents a dozen cans for such goods; that appellant would have made a profit of fifteen cents a dozen cans, had appellee fulfilled its contract agreement, but on account of its failure so to do appellant was damaged in the sum of $1,500, for which judgment is demanded.
Appellant answered the complaint in fifteen paragraphs, of which the first was in denial and the second a plea of payment. Other paragraphs of answer were challenged by demurrer, and the twelfth, thirteenth and fifteenth were held good. Trial by jury; finding and judgment for appellant in the sum of one cent, and judgment in favor of appellee for costs.
With the general verdict the jury returned answers to sixteen interrogatories. Appellant filed its motion for judgment on the answers to the interrogatories, notwithstanding the general verdict, for $1,500. This motion was overruled, and renewed for the sum of $1,200. Appellant also filed a motion for a new trial, and a motion for a nunc pro I unc entry. The overruling of each of these motions, and the overruling of appellant’s demurrer to the fifteenth paragraph of answer, constitute the errors relied on for reversal and not waived by failure to argue.
By the answers to the special interrogatories, the jury
By the general verdict the jury found in favor of appellant on all the material allegations of its complaint, and against appellee on all the material averments of its affirmative defenses, but found that appellant was entitled to only nominal damages; in other words, the verdict is a general finding that there was a breach by appellee of the contract sued on, but that appellant was not injured thereby.
The contract sued on provides that the goods sold were to be of 1906 packing, and delivery was to be made as soon as packed, at eighty cents per dozen f. o. b. factory, Cory-don, Indiana. The jury found that appellee on or about September 28 had the whole amount of goods contracted for packed and ready for delivery to appellant. The jury also found that before September 28, 1906, appellee had 5,000 cases of tomatoes ready to be delivered to appellant.
As all presumptions are indulged in favor of the general verdict, the meaning of the verdict must be that appellee did not comply with the contract, wherein it agreed to make delivery of 5,000 cases of tomatoes as soon as packed, and that at the time of default the market price was no higher than the contract price.
Judgment affirmed.
Note. — Reported in 98 N. E. 849. See, also, under (1, 2, 4) 38 Cyc. 1927; (3) 35 Cyc. 633; (5) 13 Cyc. 17; (6) 31 Cyc. 358; (7) 2 Cyc. 1041; (8, 9) 3 Cyc. 44 — New Anno.