81 Kan. 452 | Kan. | 1910
The opinion of the court was delivered by
Carl F. Sutter sued the International Harvester Company for its failure to deliver with promptness two headers and binders for which he had contracted, thereby delaying the harvesting of his wheat crop until it became overripe, and causing a loss through excessive shelling. His petition included another cause of action of a similar nature, but as the legal questions raised with respect to the two counts are precisely the same all further reference to the second will be omitted. The jury returned a general verdict for the plaintiff and answered a number of interrogatories. The defendant filed a motion for a judgment in its favor upon these answers, and also a motion for a new trial. The plaintiff filed a motion for a new trial. The court refused to give judgment for the defendant and granted the plaintiff’s motion for a new trial, upon the sole ground that a certain instruction was erroneous and that the verdict was contrary to the law as stated in such instruction. The defendant appeals and asks that the order granting a new trial be set aside and that it be given judgment on the findings. Error is also assigned on the overruling of a demurrer to the petition.
The instruction referred to was in effect that the plaintiff could not recover unless the defendant when it accepted the order for the machines knew that if they failed to arrive in time the plaintiff would not be able
The recital in the record that the plaintiff’s motion for a new trial was granted solely upon the ground stated necessarily implies that the trial court was of the opinion that none of the other grounds set out in the motion was well taken. Therefore we can not presume in support of the ruling that the court thought the special findings were contrary to the evidence (that being one of the contentions on which the motion was based) or was influenced by some consideration resting in its own discretion. Hence the decision presents an unmixed question of law, and is reviewable. (Lindh v. Crowley, 29 Kan. 756; A. T. & S. F. Rld. Co. v. Brown, 51 Kan. 6; Buoy v. Milling Co., 68 Kan. 436; Railroad Co. v. Werner, 70 Kan. 190.) If the record before us contained matter showing that the motion ought to have been sustained upon some other ground doubtless the ruling could be affirmed for that reason. But nothing of that kind appears in the case-made (which-does not include the evidence or the instructions other than the one already.referred to), and its existence can-not be presumed. If errors were committed against the plaintiff such as to entitle him to a new trial upon other grounds than that ¡approved by the court, -it -was incumbent, upon him, if he wished to take advantage of the fact, to see that the record brought here should affirmatively show it. Whether (as suggested in Mill
But the substantial controversy between the parties is whether the special findings are fatal to a recovery by the plaintiff. If not, then the defendant itself desires a new trial, and is entitled to one (if for no other reason) because it had a right to insist that the instruction given for its protection, whether right or wrong, should be followed by the jury. (Lynch v. Snead Architectural Iron Works [Ky. 1909], 116 S. W. 693, and note to that case in 21 L. R. A., n. s., 852.)
The plaintiff in his petition described the wheat for the harvesting of which he ordered the machines as covering 325 acres. At the trial he was permitted to prove, over the defendant’s objection, that the actual acreage was 1200. He asked leave to amend his pleading by substituting the latter figure for the former, but the request was denied. The jury found that two machines which he purchased from other agents in lieu of those first ordered were received in time to have cut 325 acres without loss, but not in time to have saved the whole 1200 acres. The finding denied the existence of the cause of action pleaded, for it stated that the plaintiff had obtained machinery in time to cut the only quantity of grain mentioned in the petition. But to allow this fact absolutely to preclude a recovery under the circumstances here presented would be to penalize too highly a mistake in drafting a pleading. The petition did not describe any specific tract of land, and obviously named 325 acres because that was the amount upon which the plaintiff claimed to have suffered loss. Of course the reference to the other 875 acres was
Other special findings are relied on as requiring a judgment for the defendant, but we do not think they have that effect. The jury found that when the plaintiff gave his order for the machines the defendant did not know that if they were not delivered before wheat harvesting commenced the plaintiff could not by the use of ordinary diligence obtain other machines to use in cutting his wheat. It was not essential to a cause of action that the defendant should have known that loss unpreventable by ordinary diligence would inevitably result from a delay in delivery. If it knew that such loss would be a natural and probable consequence of its default the effect was the same. The petition al
Although a technical error was committed in sustaining the plaintiff’s motion for a new trial, there is no occasion for a reversal, since if the case were reversed a new trial would necessarily follow, and it would be a useless form to set aside the order already made, merely that it might be at once reentered. The judgment will be affirmed, but the costs of this proceeding will be divided.
This decision makes it necessary to pass upon the question raised by the demurrer to the petition, which the defendant claims fails to state facts sufficient to entitle the plaintiff to special damages. The contention is that since the loss complained of is one that does not ordinarily result from the breach of a similar contract the plaintiff was required to plead- the existence of special circumstances that made such a loss in this particular instance so probable that the parties must be deemed to have had it in contemplation when they made their agreement, and that this requirement was not fulfilled, particularly because of the lack of any averment that the buyer had no other means of cutting his wheat and that the seller knew of this fact. The petition, after alleging that on June 5 an order for the machines was given and accepted, delivery to be made in time for the then approaching harvest, continues:
“Plaintiff further says that it was then well known and understood by and between himself and said agents*458 of defendant that plaintiff purchased the same for his own use in cutting the said 325 acres of wheat, which was in plain view of the business house of said agents and then known to all said parties to be rapidly maturing, and that delay in furnishing and delivering such machines within the time mentioned would result in great loss to the plaintiff because of the ripening, shelling and shattering of such wheat so to be harvested and for the harvesting of which said machines were so sold and purchased.”
The statement that the defendant knew that a delay in delivering the machines would result in great loss by reason of the ripening and shelling of the wheat, and contracted with that understanding, was enough. to show that the injury complained of was within the contemplation of the parties, and indeed went beyond what was requisite for that purpose. True, the allegation lacks detail, and might have been subject to a motion to make more definite and certain. But it presents in general terms the vital issue in the case. If a loss through overripening was a necessary result of a delay in delivering the machines, then it follows that the plaintiff could have had no other means of cutting the wheat, and if the defendant knew of the one fact it necessarily knew of the other. We think the petition was sufficient against a demurrer. If it spoke the truth the damages claimed were not too remote. (24 A. & E. Encycl. of L. 1155; Van Winkle & Company v. Wilkins et al., 81 Ga. 93; Neal v. Hardware Company, 122 N. C. 104; Kelley, Maus & Co. v. La Crosse Carriage Co., 120 Wis. 84; Colvin v. Oil Company, 66 S. C. 61.)
In Sycamore Co. v. Sturm, 13 Neb. 210, the buyer of a harvesting machine claimed that it failed to work as warranted, and that as a consequence, being unable to procure any other machine, he lost his crop. The court decided that he could not recover damages on this account because the company’s liability was limited by the terms of a written warranty, but added:
“It can not be that in a populous county of this state like Hall county, that usually and ordinarily when a*459 farmer is disappointed in his reaper, and is obliged to obtain the use of another with which to cut his harvest, such consequences follow.” (Page 218.)
This goes too far if it means that a court should presume as a matter of law that in a populous county in the wheat belt, after the harvest has begun, the use of harvesting machines can ordinarily be obtained, in time to save a crop, otherwise than by buying them. Here the petition alleged that up to the day before the two machines were obtained elsewhere the defendant continually made excuses for the nonarrival of those previously ordered and promised that they would be delivered within a day or two. Whether under all the circumstances the plaintiff used due diligence to prevent loss was a question of fact for the jury.