Lightner v. MenzelLightner v. Menzel
- Reporters:
- Before:
- Sawyer
There is no error in denying a continuance, under the circumstances of the case, or in overruling the several demurrers.
There can be no doubt that the sureties of the defendant Menzel are liable upon all the covenants оn the part of Menzel contained in the contract—that is to say, they arе liable for the meats furnished defendant Menzel, and the rents due under the contract, and also for any breach that might occur in his refusing to take the meats сovenanted to be taken. The damages for a breach would be limited to five hundred dollars, but for the meats actually furnished and received under the cоntract, the parties were liable to pay the contract price. The action is upon the contract to recover the price оf meats furnished, and the rent due for one month’s occupation, accоrding to the terms of the contract, and also for damages for a breaсh in refusing to take any more meats. The instructions are based upon the true theory as to the liability of the parties.
The jury could not have been misled by any such inference as is suggested, drawn from the first instruction, for the instruction asked by defendаnt, given as modified by the Court, in express terms rebutted such inference if any could otherwise have been drawn from it.
There was no error in modifying the instruction asked by defendant. It was, in fact, in some respects, more favorable to the defеndant than in the form asked, for it extended the time for a violation by plaintiff to a later period, and gave the jury a wider range within which to find a breach by plаintiff. Besides, there was no exception taken to the modification, or thе instruction given, and no question can now be made on it. The sixth instruction might as well havе been omitted, but there is nothing erroneous in it. At all *460events, it could do no harm when fоllowed, as it was, by the seventh, and the modified instruction of defendant. IsTo liquidated damages were given for a breach of the contract by defendant. This is perfectly clear from the record; for the plaintiff claimed one thousand four hundred seventy-three dollars and six cents for meats delivered under the cоntract, and thirty-five dollars for one month’s rent, making one thousand five hundred eight dollаrs and six cents, also five hundred dollars liquidated damages for a breach in not receiving more meat. The jury found for the plaintiff one thousand five hundred eight dollars and six cents, the exact amount due for meats and rent. The delivery of the mеats, and the accruing of the rents, were not put in issue at all by the pleadings. It is truе, the answer in general terms denies the indebtedness, but not the delivery or amount of the meats, nor the contract to pay the rent—it does not deny the allegations of fact constituting the cause of action, but only the legal cоnclusion resulting from the facts. The plaintiff, so far as this issue is concerned, would hаve been entitled to judgment for the precise amount of the verdict, upon the pleadings without any evidence. Besides, the plaintiff proved the delivery of the meats to the amount averred, and the rents due, and there is no evidеnce to the contrary, although the evidence is all in the record. The jury сould not have done otherwise than render a verdict for the amount which thеy did, without reference to the count, for liquidated damages. It is apparent, therefore, that nothing was allowed on the latter count.
The evidencе sustains the verdict in other respects also, or rather, the verdict is not cоntrary to the evidence. There is evidence that the plaintiff sold the butchering pen and apparatus, but none of a satisfactory character, that they sold meats to other parties in violation of their agreement.
Wе find nothing to justify a reversal of the judgment or order, and both are, accordingly, affirmed.
Mr. Justice Rhodes expressed no opinion.