Singer Manuf'g Co. v. Potts

59 Minn. 240 | Minn. | 1894

Canty, J.

This is an appeal by the defendants from a judgment against them on the pleadings. The action is brought on several non-negotiable notes or contracts for the payment of money, against the defendant Potts, as maker, and the defendant George, as guarantor of the payment of the same.

The answer of each admits the making and guaranty of the instruments, and alleges that plaintiff and Potts had a settlement and an accounting, and, in consideration that he assented to the amount of the notes being due plaintiff, plaintiff orally agreed that the defendants should have the collection of divers claims owing by different parties to plaintiff, and amounting in all to $2,000, and that plaintiff agreed to allow defendants for making such collections twenty five per cent, of the amount so to be collected, and to apply the same as payment on said notes, and, when the same were thereby paid, to surrender them to defendants, and that all of the claims were good and collectible; that, accordingly, said collections were placed in the hands of defendants, and Potts made the notes, and George guarantied them, and that afterwards plaintiff took the collections from defendants without their consent; that, if they were allowed to collect said claims, they would have been able to do so long before said notes became due, and would thereby have paid the same; and that they have at all times been willing to perform their contract and collect the claims.

As a counterclaim, defendants further allege that, by reason of said facts, they have been damaged in the sum of $500, and pray judgment for that sum.

We are of the opinion that the answers state no defense. The oral agreement set up in the answers was made at the same time with the notes. It would contradict or vary the terms of the written contract expressed in the notes, change their time of payment, and make them payable out of a special fund. For this purpose, it is incompetent, and therefore no defense to an action on the notes.

But this oral agreement is set up also as a counterclaim, and, as such, we will regard it as an independent transaction. It does not appear that defendants are entitled to recover on this counterclaim any more than nominal damages. The measure of damages for the breach of such a special contract is the loss of profits. There are no allegations showing what the profits would be. It is alleged that the amount of the claims to be collected was $2,000, and all of the same were good and collectible, and that defendants were to have twenty five per cent., amounting to $500, for collecting the same. For all that appears, it might be worth, and it might cost more than, $500 to collect the claims. The allegation that defendants were damaged in the sum of $500 is not a sufficient statement that the profits would be that sum or any sum.

Because the court below did not deduct the amount of nominal damages from the amount of plaintiffs claim when ordering judgment on the pleadings, if an error at all, is too trivial an error to be regarded on appeal. Palmer v. Degan, 58 Minn. 505 (60 N. W. 342.)

The order appealed from is affirmed.

Gilfillan, C. J., absent on account of sickness; took no part.

(Opinion published 61 N. W. 23.)