Smith v. Kingman & Co., Nos. 10,748-(167)

Nos. 10,748-(167) | Minn. | Dec 13, 1897

CANTY, J.

On the trial of this action plaintiffs had a verdict and from an order denying a new trial defendant appeals.

1. The complaint attempts to set out a cause of action for damages for fraud in the sale by defendant to plaintiffs of a number of bicycles. It alleges:

“Said defendant * * * represented to plaintiffs that the said bicycle was a high grade machine and was manufactured by the Kenwood Bicycle Manufacturing Company in the city of Chicago, state of Illinois; that said bicycle was first class in every respect; that defendant had knowledge of the reputation of said machine, the same having been on the market for the preceding six or eight years, and that its reputation as a salable and durable machine was first class in every respect.”

It is further alleged that plaintiffs believed the representations so made to be true, relied on them, and were induced thereby to purchase and did purchase the bicycles; that said representations were false; that the bicycles were defective and inferior in grade, were not manufactured by said Kenwood Co., but by the Hamilton Cycle Co. of Hamilton, Ohio; but it is not alleged that the defendant knew that its representations were false and therefore the complaint does not state a cause of action for deceit. There are also allegations from which, perhaps, it might be held that the complaint states a warranty of the quality of the bicycles and a breach of that warranty. It also sets up the cause of action referred to in the third paragraph of this opinion. On the following rulings of the court on the trial, appellant attempts to raise the question that the complaint does not state a cause of action for deceit.

Zimmer was called as a witness on behalf of plaintiffs and the following proceedings took place:

“Q. What representations were made regarding the material that went in to make that wheel? Mr. Yan Wert: That is objected to for the reason that he has intimated that the contract was in writing. That would be the best evidence. The Court: Not in a case of this kind. Representations don’t necessarily have to be a part of the writing. Mr. Traxler: Now, your Honor, counsel is mistaken in regard to this being an action for deceit. It is an action, according to the pleadings, for a breach of the contract and damages resulting therefrom. The Court: I think the complaint is sufficient. Objection overruled. Mr. Traxler: Exception. * * * Q. What representations were made as to the high grade quality of material in the construction of the wheel? Objected to as incompetent, immaterial and irrelevant. The Court: This action is not founded on the contract. * * * It is purely an action for deceit, and hence I think this testimony is competent as to what representations were made that led up to and induced the plaintiffs to enter into the contract. So you may proceed. The objection is overruled. Exception by defendant.”

We are of the opinion that appellant has not by the objections and exceptions so taken raised the question assigned as error.

Appellant objected to the first question on the ground that it called for secondary evidence, and to the second question “as incompetent, immaterial and irrelevant.” Neither of these objections raise the question that the evidence was not admissible under the pleadings. After each objection, the court made some remarks on a question not presented by the objections, — on a question not before the court, — and appellant excepted to the position taken by the court in those remarks. But as the remarks were not rulings on any question presented to the court, they cannot be brought here for review. Again it does not appear that the attention of the trial court was ever called to the particular defect in the complaint by reason of which it does not state a cause of action for •deceit.

2. We are also of the opinion that the evidence is sufficient to sustain the verdict. The evidence tends to prove that the “Ken-wood” bicycle was at the time of the contract of sale here in question, January 3, 1896, a well-known, standard, high-grade bicycle, which had for seven or eight years been manufactured at Chicago, Illinois, and during that time no bicycle of any other manufacture was known by that name; that defendant knew and understood that plaintiffs were bargaining for this particular, well-known wheel, but instead of furnishing them this wheel, fraudulently delivered to them a spurious wheel of a different manufacture of inferior grade or quality and of less value, and that plaintiffs did not have reasonable opportunity to discover the fraud, and did not ■discover it until after they had accepted the bicycles and disposed of the greater portion of them. We are also of the opinion that there is evidence reasonably tending to support a verdict for the amount to which the court reduced it on the motion for a new trial.

3. The complaint alleges, and the contract of sale introduced in evidence shows, that plaintiffs were given the exclusive right to sell in Minnesota, North and South Dakota, “wheels manufactured by the Kenwood Manufacturing Co. of Chicago,” and defendant agreed to protect plaintiffs “fully from any competition in said territory on said wheels,” but failed to do so. The evidence also tended to prove that in the early part of the year 1896, one Douglass purchased all the rights of the Kenwood Manufacturing Co. of Chicago, and during that year continued the business and sold in Minnesota and North and South Dakota the wheels manufactured at its Chicago factory, labelled and known as “Kenwood” and “Douglass” wheels, and that all of these wheels sold under both names were of the same make, grade and style.

It is assigned as error that the court permitted plaintiffs to prove that in a number of respects the latter wheels were superior to the wheels so delivered to plaintiffs. The evidence was competent as it tended to prove that defendant had violated the part of its contract last above referred to.

4. There is evidence tending to prove that whatever right defendant had to the use of the name “Kenwood” on its wheels it obtained through Reynolds & Jones, who it appears by the evidence had purchased a large number of wheels manufactured at the Chicago factory. The testimony of Douglass was taken on deposition. On the trial, this deposition was read and the following proceedings appear in the record in connection with the reading of the same:

“Q. Will you state whether or not they” (Reynolds and Jones) “were given the right to put that name-plate on wheels manufactured by factories other than this original Kenwood plant? Mr. Traxler: Objected to as incompetent, immaterial, irrelevant and not the best evidence. Objection overruled. Defendant excepts. A. No such right was ever granted Reynolds & Jones. When the sale was made to them it was talked over and generally understood that any wheels they sold under that name would be manufactured by me. Mr. Van Wert: The ‘generally understood’ there, it seems to me, is not competent evidence. The Court: It may stand. Mr. Traxler: I move to strike it out for the reason that it is not responsive. Motion denied. Defendant excepts.”

These rulings of the court are assigned as error. The question was competent and so was the answer, except the part of it which states what was “generally understood.” But there is no exception to the ruling of the court on the remark of Mr. Van Wert, and the motion of Mr. Traxler (the other counsel for defendant) to strike out this part of the answer was made solely on the ground that it was not responsive. Clearly it was responsive to the question, and no good ground for the motion was stated.

5. It was not error to permit the plaintiff Smith to testify that when purchasing the wheels he relied on what he supposed to be the fact that the wheels were manufactured by the Kenwood Co. at Chicago.

6. In support of a motion for a new trial an affidavit of one of defendant’s attorneys was read, in which it is stated that immediately after the court charged the jury, a juror asked the judge some questions as to the evidence and the court answered them and that plaintiff Smith also made a remark. There is no claim that the court did not state truly what the evidence was, which evidence is uncontradicted. The remark claimed to have been made by Smith was of no consequence. But these matters having occurred in open court cannot be reviewed, as they were not excepted to and inserted in settled case or bill of exceptions. This disposes of all the questions raised having any merit and the order appealed from is affirmed.