132 Ky. 496 | Ky. Ct. App. | 1909
Opinion of the Court by
Affirming.
The plaintiff, Hickman' Grain Company, a' partnership composed of the J. F. & S. L. Dod'ds Company, a corporation organized under the laws of Mississippi,
The contract between the parties is in writing, and' is as follows: “Hickmar, Ky., August 27,1907. I have this day sold to the Hickman Grain Company, of Hickman, Ky., 1,500 barrels of ear corn, to be of good merchantable condition, to be delivered at Hickman at their switch at West Hickman, by January 1, 1908, price to be $2.00 per barrel. (Signed1) Ed. Knox, Steve Stahr.” It is claimed by defendant that the court erred in sustaining a demurrer to certain paragraphs of his answer and counterclaim, and in the giving and refusing of certain instructions.
One of the defendant’s defenses was that the alleged partnership between J. F. & S. L. Dodds Company and the Dahhke-Walker Milling Company was a combine, agreement, and understanding between the two corporations for the purpose of controlling, regulating, and fixing the price of corn at West Hickman in Pulton county, Ky. This" defense, even if available by defendant, was not properly pleaded.
The next defense relied upon was that the two corporations- had no right to form the partnership, in question; that at the time defendant entered into the contract he was ignorant of the fact that the Hickman Crain Company was composed of two corporations. Without entering into a discussion of the question when and under what circumstances corporations may enter into a joint enterprise and thus become partners therein, we deem it sufficient to say that, even if the two. corporations composing the Hickman Crain Company had not the legal right to enter into a joint undertaking, this fact would not be available as a defense by defendant. Where two corporations or a corporation and a natural person have assumed to enter into a partnership, not in violation of the antitrust statute, and have done business jointly, they may recover upon obligátions made to them in their partnership name, irrespective of their rights and duties as between themselves, or of the power of the corporation to enter into a partnership. 10 Cyc. 1143; French v. Donohue, 29 Minn. 111, 12 N. W. 354.
By another paragraph the defendant defended on the ground1 that the payment for the com was made in script, which was not a legal tender, and that this
There was a further plea on the part of defendant that the plaintiffs themselves first violated the contract in question; indeed, this was the only real defense that the defendant had. The question whether or not the contract was violated by plaintiffs or defendant was properly submitted to the jury. In case the jury found for plaintiffs the court fixed the measure of damages as the difference between the market price of the corn on January 1, 1908, and the contract price of $2 per barrel. It is earnestly contended by counsel for defendant that the market price on December'15, 1907, the time when plaintiffs charge the contract was violated by defendant, was the correct date upon which to arrive at the market price. It is manifest, however, that as defendant had until January 1, 1908, to deliver the corn in question, and might have delivered it at any time up to that date, the market price on that date is to be taken into consideration in determining the amount of damages. 1 Sedgwick on Damages, p. 552; Miles v. Miller, etc., 12 Bush, 134.
Counsel for defendant further insists that it was the duty of the court to submit to the jury the proposition whether or not other corn' of equal kind could
Further complaint is made by counsel for defendant that in instruction No. 2 the court used “sound merchantable com,” instead of “good merchantable corn;” the latter phrase being the words of the contract. The meaning of the words ‘ ‘ sound’ ’ and “good,” in the connection in which they were used, is substantially the same. The jury could not have failed to understand what they were called upon to-decide. They concluded that there was no merit in the defense interposed by defendant. A careful reading of the record leads us to the same conclusion.
Perceiving no error in the record prejudicial to the substantial rights of the defendant, the judgment is affirmed.