91 Kan. 509 | Kan. | 1914
The opinion of the court was delivered by
This action was begun by the appellee, The National Supply Company, to recover from the appellant, the United Kansas Portland Cement Company, the sum of $947.50, the price of fuel-oil appliances which it was conceded were ordered by the appellant and furnished by the appellee, but for which payment has not yet been made. The order for these appliances was based on a verbal proposition previously submitted by Mr. Billow, an officer of appellee. It was claimed by appellee that under this proposition appel
Complaint is made of the charge given to the jury, and, first, of some general instructions as to the binding effect of a contract between parties and the liability-arising from its breach by one of them. These appear to be appropriate and free from error. The theories, of each party, as gathered from the pleadings and evidence, were presented in the charge to the jury.
Special objection is made to an instruction with reference to a claimed deduction. for the services of experts in installing the plant, which were not rendered, and in which the jury were told that if they found “that such failure to. install plant and instruct.
“A party to a contract who' prevents the performance of ány condition, can neither claim benefit nor escape liability from the failure of such condition.” (Mill v. Poper 29 Kan. 289, syl. ¶ 2.)
It appears that the supervision was only an incident of the sale, and as it was performed so far as it was possible by appellee, the appellant, which prevented performance, can not take advantage of nonperformance. Aside from that, the appellant, in one paragraph of its answer, alleged that the service of expert supervision of the equipment by appellee was to be paid for by appellant; According to the testimony of appellee, which was evidently accepted by the jury, the agreed price of the fuel-oil appliances, outside of the hose, was $1 per boiler horse power, a computation of which made it amount to $920, and that was the award of the j ury for that part of the equipment. The admissions made by the officers and agents of appellant and the letters written by its treasurer tended strongly to support the claims of appellee and the finding of the jury.
In view of the developments in the trial of the case the objections to rulings in the admission of testimony are not deemed to be substantial.
The judgment is affirmed.