170 Ky. 384 | Ky. Ct. App. | 1916
Opinion op the Court by
Affirming..
The plaintiff (appellee), a corporation, sued the defendant, J. W. Lam and the Hillside Coal Company, to recover from them an alleged balance of account, amounting to $1,492.64, which it is charged to be due from defendants as the unpaid portion of an account for the value of a lot of machinery and material which it had furnished to the defendants for use at the Dovey mines in Muhlenberg county at their instance and request, and, that the defendant, Lam, had repeatedly promised to pay the sum sued for since the completion
It was admitted by the reply that there was a contract, but the matters relied upon as counterclaim were denied, and it was alleged therein that the only delay in the furnishing or installing the machinery contracted for, was due to the failure of the defendant to comply with his part of the agreement to furnish material and work, necéssary to equip the mine and structures con
One of the contentions of appellant is, that it was a part of the agreement that the plaintiff should furnish an experienced man to superintend the construction of the works at the mine,'in connection with which the machinery, which plaintiff was to furnish, should be installed, and that plaintiff failed to furnish this man, and it, therefore, can not be heard to complain that these structures were not properly built, or .that they were not built at all; while plaintiff’s contention is that, under the contract, all this work was to be done exclusively by the defendant, and that it was to furnish aii experienced man only in connecting up the machinery contracted for, after the defendant had made ready his structures to receive it.
As is usual in such cases, there is a contrariety of evidence, each party introducing proof to sustain his contention. The contract was made between Lam, who' had recently purchased the Dovey mines, and M. Hanna, Sr., who was the agent and representative of the plaintiff. The foundry and shops of the plaintiff, which are located at Earlington, seems, at the time, to have been operated by M. Hanna, Jr., a son of M, Hanna, Sr., and Miss Celia Hanna, a daughter of the senior Hanna. After receiving this contract through his father, the young Hanna prepared a written contract, which he calls specifications, which was mailed to the defendant for his signature, but no reply of any character was ever received from him. All parties agree that the price to be paid for the material in the original contract was $2,050.00, one thousand dollars of which was due when the machinery was loaded on the car at Earlington, and the balance after the machinery was installed and accepted. In addition to this sum, the plaintiff received a lot of old machinery which it obtained from another mine owned by the defendant. The machinery furnished under the contract was to be so furnished by the plaintiff, f. o. b. cars at Earlington. The proof on behalf of plaintiff shows' that upon notification from- defendant.
It was shown by the plaintiff that the $1,000.00, agreed to be paid, was not paid'when the machinery was loaded on the car at Earlington, but in partial payments extending over a period .subsequent to the sale of the mines by the defendant oil May 23, 1913, and that the balance due on the contract, together with some additional items, amounted to the sum recovered.
The grounds urged for reversal are: (1) The exclusion of testimony offered by defendant, and the admission of certain testimony offered by plaintiff in re
We will consider these in the order named: (1) The evidence offered by defendant, and which was refused, consisted of an effort to show by defendant th’at the months of August, September, October, and November, are the best coal producing months, and the ones in which the greatest demand exists for coal. This, of course, was offered upon the idea that the machinery had not entirely been installed during these months, and that the mine was not in operation and defendant was thereby prevented from making' a profit during these prosperous months. He did not show that he had any contract for coal which he was prevented from filling, nor did he show that the current price of coal was such as that he could have' mined it at a profit. But, however this may be, the jury allowed nothing upon this item of complaint, nor on any of his counterclaim, and under the well-settled practice in this and other States, •the error, if one, could not prejudice the defendant, because the jury failed to find for him upon his theory of the case. Moreover, by other witnesses, the defendant did prove the facts of which he complains. After the plaintiff had shown by its testimony in chief its version of the contract, and that it furnished the materials which it had agreed to, and showed its readiness to install the material on request of defendant, and the balance that was due it, rested its case. The defendant then introduced testimony to support his contentions, and plaintiff, in rebuttal, was permitted to show the failure of the defendant to comply with his part of the contract as a justification for the complaints he made against it. It is seriously contended that this testimony should have been introduced in chief. Aside from the rule which permits the order of the introduction of testimony, to be governed largely by the discretion of the trial court, we think this testimony was properly introduced in rebuttal. All that plaintiff had to show to make out its case was, that it furnished the material, and that it was ready and willing at all times to perform its part of the contract in installing the material at the mines, and to show the
(2) It was shown by plaintiff that the balance due it from the defendant under the contract, plus some additional articles furnished to defendant, was $1,292.46. This is testified to by Mr. Hanna, Jr., and his sister, who was the bookkeeper of plaintiff, and while defendant contended that in no event did it exceed $900.00, yet this was a matter for the jury, and under the evidence, we are not inclined to disturb its finding.
(3) Without setting out the instructions, as we read them, they submitted in substantial form the respective contentions of the parties. It is complained, however, that the court should not have given instruction “C” which it gave upon its own motion. This instruction in very apt terms submitted the defendant’s contention made in his counterclaim, and is almost identical in language, and we think, actually so in substance, of instruction “E” offered by defendant. If, therefore, it was error to have given instruction “C” (which we do not hold), it would have been cured so far as the defendant is concerned by his offering one of substantially the same tenor. “A party can not complain of an instruction given in the exact language of an instruction asked for by him, or in substantially the same language.” (Hobson on Instructions, section 50); Stowers v. Singer, 113 Ky. 584, 24 R. 395, 68 S. W. 637; First Natl. Bank v. Germania Safety V. & T. Co., 112 Ky. 734, 23 R. 2135, 66 S. W. 716; C., N. O. & T. P. Ry. Co. v. Hollis, 28 R. 1102, 91 S. W. 258; Louisville Water Co. v. Phillips, 139 Ky. 614, 28 R. 557, 89 S. W. 700; Central Ky. Traction Co. v. Combs, 143 Ky. 529, 136 S. W. 1045.
(4) This objection is noi seriously insisted upon, as there is abundant testimony to justify the verdict.
(5) As to the fifth ground of complaint, it is contended that the peremptory instruction should have been given to find for the defendant because the proof showed that the plant of the Earlington Machine Works was being operated by young Hanna and his sister at the time, and that they in reality were the ones with whom the contract was made, and that the corporation, as such, had nothing to do with it. It is a well-known rule of practice in this State that a judgment will not be re
Failing to find any grounds justifying a reversal of the judgment, it is affirmed. ,