26 Kan. 367 | Kan. | 1881
The opinion of the court was delivered by
The plaintiff in error sought to recover from defendant in error, judgment for $211.66 for notes placed in the hands of the defendant for collection. The defendant, in answer, pleaded a set-off of several items as follows:
“Cash paid for freight upon two machines, $30j commis
The case was tried to the court with a jury, and the following special findings of fact were returned by the jury:
Q,. 1. Was the defendant the agent of the plaintiff for the purpose of selling plaintiff’s machinery ?
A.l. Yes.
Q,. 2. Was the defendant to receive from plaintiff a commission on the goods sold as pay for his services ?
A. 2. Yes.
Q,. 3. Did plaintiff ever part with the title to any of its machinery, to the defendant ?
A. 3. No.
Q,. 4. How many of plaintiff’s machines did defendant sell in the year of 1879, and how much did he receive for the same in notes, and how much in cash ?
A. Fourteen machines; second, don’t know.
Q. 5. Did defendant remit to plaintiff all notes received by him from sales of plaintiff’s machinery?
A. Yes.
Q,. 6. Did the plaintiff send to defendant certain notes for collection, and collection only amounting in the aggregate to the amount claimed in the petition ?
A. Yes — $211.66.
Q,. 7. Did the defendant collect said notes and pay the same to the plaintiff?
A. No.
Q,. 8. Did the plaintiff, prior lo this suit, demand of the defendant said notes, or the proceeds thereof?
A. Yes.
Q. 9. If yes to the above question, did the defendant refuse to pay the same to the plaintiff?
A. Refused to pay until damages were paid him.
Q. 10. Was there a settlement between the parties on October 17, 1879, for the sale of Dewey harvesters for said year?
A. Yes.
Q..11. Was the settlement a full and complete settlement at that time ?
A. A partial settlement.
A. Livery hire, freights, commissions on two machines, and damages on general business.
Q. 13. Was there any trespass on the territory of the defendant, in the sale of the Dewey harvesters in 1879, at the direction of plaintiff?
A. No evidence to that effect.
Q. 14. How many Dewey harvesters, if any, were sold in Smith county in 1879, by other parties, and if any, to whom were they sold ?
A. No evidence of any.
Q,. 15. Under the contract, was the defendant required to set up said harvesters when delivered to parties sold?
A. Yes.
Q. 16. If yes, did the defendant comply with his part of the contract?
A. Yes.
Q. 17. Did the defendant suffer any general damages from the misrepresentations of the plaintiff?
A. Yes.
Q,. 18. If yes, what were the different items and elements of damage?
A. Damaged him in his business.
Q. 19. Did the defendant suffer any special damages on account of misrepresentations by plaintiff? If so, give the items and elements of damages.
A. No special damages.
Q. 20. Just prior to the beginning of this suit, did the defendant state to the plaintiff, that in the event of the plaintiff not letting the defendant have this agency for the selling of the Dewey harvesters, for 1880, that he, the defendant, would claim damages?
A. Yes, if plaintiff would make improvements on harvesters according to promise.
Q. 21. Is Cummings entitled to recover for any livery bill?
A. Yes.”
The jury also returned a general,verdict for defendant, of $34.65. The plaintiff brings the case here.
Several preliminary objections are taken to the sufficiency of the record by the defendant, but none of these objections is well sustained. It is sufficient to say upon these points, that the verdict of a jury is a part of the record in the case,