65 Neb. 646 | Neb. | 1902
This action was commenced in the district court for Douglas county by the plaintiff in error to recover $127.50 from the defendant in error on account for certain mineral Avaters sold and delivered to the defendant by the plaintiff. The petition was in the ordinary form to recover on account for goods sold and delivered at an agreed price. The defendant by its answer admitted the sale and delivery of the goods but denied that it was indebted to the plaintiff in any sum whatever. For a further defense it was alleged in the answer that the plaintiff, at the time the goods Avere ordered, agreed to do certain advertising in order to create a market and a demand for the mineral Avaters so sold to the defendant, AAdiich advertising was to be done by visiting physicians of Omaha, sending them letters, blotters and cards setting forth the medicinal properties of the Avaters, etc.; and their attention was to be called to the fact that said Avaters could be had at the defendant’s drug store. It was further alleged that the defendant furnished plaintiff the names of the leading physicians of Omaha for that purpose; that plaintiff only partially complied Avith its contract in that behalf; and that by reason of such failure to perform its contract on the part of plaintiff, defendant has only been able to dispose of and sell four cases of said mineral Avater at the price of $20, and has been unable to sell and dispose of the rest of the consignment; that had plaintiff kept and performed its contract defendant could and would have sold seventeen cases of said mineral Avater still on its hands at $8.50 per case, or $144.50, and the remaining four cases at $4.50 per case, which was the reasonable market price therefor, and on the whole consignment it would have made a profit of $51, Avhich represents its damages for the failure of the
“We, the jury duly impaneled and sworn to try the issue joined between the said parties, do find for the said defendant, and do assess its damages against said plaintiff at $-. . J. W. Martin, Foreman.
“We, the jury, do find that defendant’s profits would have amounted to the sum of $49.50; that he has already received the sum of $30.00 from the proceeds of sales of mineral water in question, subtracting that amount from net amount of profits, namely, $49.50, leaving a balance of $19.50 due the defendant, which amount we consider the mineral water now in the possession of Kuhn & Co. to be worth. J. W. Martin, Foreman.”
The court thereupon rendered the following judgment:
“It is therefore considered by the court that the above entitled action be, and the same is hereby dismissed; and that the defendant go hence without day and recover of and from the said plaintiff its costs herein expended taxed at $-, for which execution is hereby awarded.”
A motion for a new trial was filed and overruled, and
1. The plaintiff claims that the court erred in giving its fourth instruction to the jury, which is as follows: “The jury are instructed that they are first to consider and determine what the contract between the plaintiff and defendant was, and what, if any, were the inducements which led the defendant to make the contract with the plaintiff, and if you find from the evidence that the defendant made the contract as alleged in the petition by plaintiff, but that the defendant was induced to make the contract under the express agreement on the part of plaintiff, that the plaintiff by and through his agents would create a market for said goods by frequently visiting personally the physicians of the city of Omaha, referred to in the testimony, with the view of inducing them to prescribe said mineral water for their various patients and informing them that the same was kept in stock at the defendant’s store, and if you further find that said agents and representatives of the plaintiff failed to personally visit the said physicians in the city of Omaha, referred to in the testimony, with the view of inducing them to prescribe said mineral water for their various patients, and failed on its part to comply with any material representations which you may find were made by the agents of the plaintiff company to the defendant, and which induced the defendant to enter into said contract, then, in that case, the plaintiff can not recover from the defendant upon its said contract.” By this instruction, the jury were told in effect, that although defendant had ordered the mineral water at the agreed price as set forth in the petition, and received, retained and sold a portion of it, yet if the plaifitiff had failed to carry out its agreement to advertise the same by the means and in the manner alleged in the answer, then plaintiff could recover nothing on the claim sued on.. The learned trial judge certainly was mistaken as to the law of this case. Under the pleadings and the evidence the plaintiff was entitled to recover the amount of the contract .price of the goods sold and.de
2. Plaintiff alleges that the court erred in giving its sixth instruction to the jury, which is as follows: “The jury is further instructed, if it finds from the evidence that the plaintiff has failed to comply with its contract or failed to comply with the material promises or inducements which you may find induced and led the defendant to enter into the contract, plaintiff can not recover upon its contract; and in such case the defendant is entitled to recover from the plaintiff the profits which the defendant would have made if the plaintiff had complied with all the inducements and agreements on its part to be performed, but, inasmuch as the defendant has in its possession some of the cases of mineral water sent by plaintiff to defendant, you are to inquire what, if anything, is the value of the mineral water now on hand in the possession of the defendant, and how much, if anything, has been realized by the defendant on the sale of mineral Avater during the time plaintiff was carrying out its contract; add these amounts and from this sum you must subtract; and if you find the defendant’s damages exceed in amount these sums, then the defendant is entitled to a verdict for the difference, provided you find for the defendant. If on the contrary the amount realized by the defendant on the sale of the mineral water during the time plaintiff was engaged in carrying out its contract, added to the value, if anything, of the mineral water now in possession of the defendant exceeds the profit which the defendant would have made on the sale of mineral water if the plaintiff carried out its contract, then you should give a verdict for plaintiff for such excess.” We can not approve of this instruction. By it the jury
3. It is urged by the plaintiff that the evidence is not sufficient to sustain the verdict. Upon the question of the terms of the agreement, Kuhn, the president of defendant company, testified as folloAvs: “A gentleman came in and told me he represented the Silurian Mineral Springs Company of Waukesha, Wisconsin; that he had a Avater in his possession similar to Bathida water, which was Avell known in the market, but which had added to it lithia and other chemicals that altered its effect on the system in such a way that it Avas adapted for other diseases Avhich the Bathida water Avas not used for; and he Avanted to sell me a car-load. He wanted to sell a car-load, and I told him
“He said that $9 would be a proper price; and I said that we could not get $9, for other water was being sold for $8.50, and that price was as much as we could get, or ask for it, and $4.50 a case for half gallon plain water was as much as we could get for it.”
Q. What did he say in regard to that?
A. He just simply thought if the other waters were*sold for that price we could not expect to get more for Yitalozed Lithia.
Q. Now, are you able to state whether this water could •have been sold at that price if they had advertised it as they agreed to do; that is, if they had written letters to these physicians and called upon them as they said they would call upon them and sent this printed matter and reading matter to them, and used their efforts to advertise the water as they agreed to advertise it?
A. Yes, sir.
Q. State what in your judgment you would have been able to sell this water for if they had created a market for it in the way they agreed to do; that is what would have been the market price of that water in the summer of 1898, if they had made an effort to create a market, which they agreed to do?
A. $192.50 was the total by the case, I might say.
It will be observed that the defendant’s witness does not testify that he could or would have sold all of the consignment within any specific time. His evidence, properly con
We are satisfied that the evidence does not sustain the verdict, and that the judgment of the trial court must be reversed. We do not think we ought to go so far as to hold that the ansAver does not state any defense to the plaintiff’s cause of action. Defendant would be entitled, at least, to recover nominal damages of plaintiff for the breach of its agreement, if such breach were proved. It may be that the ansAver should be amended and reformed, but that would hardly warrant us in attempting to finally dispose of the case in this court.
For.the foregoing reasons, we recommend that the judgment of the district court be reversed and the cause remanded for a new trial.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed and remanded.