Nichols v. Haines

98 F. 692 | 7th Cir. | 1900

WOODS, Circuit Judge,

after making the foregoing statement, delivered the opinion of the court.

The first error insisted upon is the admission of the testimony of Harriet M. Haines, who testified to certain conversations between Elisha K. Nichols and B. E. Haines, whose widow she said she was. It is a sufficient technical answer that she is not shown to have been the wife of the deceased at the time of the conversations concerning which she testified, hut it is a more satisfactory answer that the testimony tended to prove nothing which was not established by the imcontradicted testimony of another witness, of whose competence and credibility there was no question. No evidence was offered by the defendants, there was no conflict in that offered by the plaintiff, and there was therefore no available error in the court’s charge or in the refusal of instructions asked, unless in some essential respect there was a lack of evidence to justify the verdict for the plaintiff. Besides the $3,500 paid at the time of Ihe execution of the contract, there was a subsequent payment of $1,000, and it is claimed that the first sum should have been treated as liquidated damages, the payment of which discharged the plaintiffs in error from all further liability. The proposition is manifestly unsound. The evidence does not show the quantity or value of the oranges taken by the plaintiffs in error from the place. The stipulation in the contract is not for liquidated damages, but for a forfeiture, and there is nothing disclosed which requires it to be treated otherwise. If there remained unpaid upon the contract a sum less than §1,500, say only §500, it is evident that the plaintiff could be entitled to recover only that sum and interest; and the amount unpaid being greater than the stipulated forfeiture, and being definitely ascertainable, that amount, with interest, is the proper measure of the recovery.

The nest contention is that the execution of the contract by the plaintiffs in error was not proved. Their co-partnership name was signed to the agreement by an agent whose authority, otherwise amply proven, was not shown by an instrument under seal. The contract is one to which a seal was not necessary. The action is in assumpsit, not covenant, and the seals attached may be regarded as. surplusage. For authorities, see 1 Am. & Eng. Enc. Law (2d Ed.) p. 953.

It is suggested, further, that proper proof was not made of the plaintiff's appointment as administratrix. Her appointment was not specifically denied, and, if proof on the point was necessary, it is found in her own testimony, which in that respect was admitted without objection. The judgment below is affirmed.