111 Ky. 613 | Ky. Ct. App. | 1901
Opinion of the court by
Reversing.
The appellees claim they had a contract with the appellant by which it promised and agreed to deliver to them at Monticello, Ky., a car load of vehicles, consisting of phaetons, buggies, etc., at certain prices, and, having failed to do so, it violated the contract, resulting in their damage, for which a recovery is sought. It appears from the record that the appellees first proposed to engage in- the buggy and saddlery business, and began to negotiate with the appellant to get vehicles from it. This negotiation resulted1 in bringing .an agent of the appellant and the appellees together in December, 1898. The appellant has printed blanks, upon which it requires customers and agents to make application for vehicles- It also has a contract called a “special agency contract,” and it' requires those whose orders for vehicles it approves to sign it. It is admitted by W, R. Lyon, representing the firm, that the special agency contract was to be signed before any vehicles were to be shipped upon the orders which he ha.d ■made, and in his letters he asked for delay in signing that
The appellees insist that order No. 2, for the special lot •of vehicles, four or five in number, was not embraced) in the contract; that they were to pay cash for them. Taking the order with the special agency contract, this contention is not sustained, because the order in express terms says the vehicles are to remain the property of the appellees. However, if it can be shown on another trial that order No. 2 was not intended to be embraced as part of the “special agency contract,” and under proper instructions the jury reaches the conclusion that a contract of sale of the vehicles ¡mentioned in order No. 2 was actually made, then the appellees would be entitled to recover the difference -between the contract price at Monticello and the market price of them or like vehicles at that time and place. The question of prospective profits in the sale of vehicles should not be permitted to be proven.
The court erred in instructing the jury, and, on a return of the case, should give the law in accordance with this opinion. The cause is reversed for proceedings consistent with this opinion.