20 Minn. 139 | Minn. | 1873
By the Court.
The answer in this case alleged that defendant being a merchant engaged in the sale of boot and shoe packs in St. Paul, plaintiffs in 1871, prior to December 4, in consideration of defendant’s promise hereinafter mentioned, agreed “ to furnish, sell and deliver ” to defendant “.all of the boot and shoe packs which the defendant should require of them in his business, aforesaid, for the ‘ season ’ ensuing next after said agreement, which said ‘ season,’ as all the parties hereto then and there well knew, began in 1871, prior to December, and ended about January 15th, 1872; that they agreed to furnish, sell and deliver such articles, from time to time throughout suche season,’ in such quantities and at such times as the said defendant should require and request,” at certain named prices, which defendant on his part promised to pay ; that plaintiffs, pursuant to agreement, furnished and delivered to defendant a certain quantity of boot and shoe packs,but, although from time to time duly requested, wholly failed and refused to deliver other boot and shoe [packs which he requested and duly required them to sell and [deliver to the amount (at agreed prices) of eight thousand [dollars; that defendant was thereby, damaged (as in the [answer'set forth,) in the sum of eight hundred dollars.
| Defendant sets up this damage as a counter-claim, and the puling of the court below in rejecting defendant’s offer to prove the same is the first error assigned upon this appeal. [But we are of opinion that the ruling was right according to the dóctrine of Bailey et al. vs. Austrian, 19 Minn. 535. There Is the same want of “ absolute mutuality of engagement ” in
As to the several'errors which defendant alleges that the court committed in instructing and refusing to instruct the jury, the foregoing determination really disposes of them all in favor of respondents, as a little reflection will show.
The court instructed the jury to bring in a general verdict, and special findings upon two questions specifically submitted. The jury retired for consideration, having been directed by the court, with the consent of both parties, if they should agree after the adjournment, to seal up^their verdict and bring it into court nest morning. The jury (having agreed and thereupon separated) accordingly brought in a general verdict under seal for the plaintiffs. The clerk had entered in his minutes said general verdict reduced to form, and had read the same to the jury, but before the jury had been asked if it was their verdict, as required by sec. 216, ch. 66, Gen. Stat., the counsel for the plaintiff called attention to the factj that the jury had not found upon the particular questions submitted as aforesaid, and requested the court to direct them to retire and find upon the same. The court so directed, defendant excepting. Thereupon the jury retired and re-1 turned their general verdict, as before,, together with special findings in answer to the questions aforesaid. Said verdici and findings were received and recorded, defendant objecting. Defendant contends that the court erred in thus “ allowin¡ the jury after they had made up their verdict, sealed it am separated, to retire upon the following morning to find upoj the special issues.” Until the jury had been asked whethei the verdict recorded was their verdict, and had not disagreei thereto, the verdict was not “ complete.” Gen. Stat., ch. 6l
Such also is the prevailing and better view, upon authority, independent of statute. 1 Graham and Waterman’s New Trials, 85-92: Pulaski vs. Ward, 1 Rich. (So. Car.) 119; Barrett vs. Phillips, 1 Gallison, 360, per Story, Justice ; 3 Graham and Waterman’s New Trials, 1398 et seq.
In the case at hand, while the jury should properly have found upon the questions specifically submitted before separating, we see no reason for apprehending that the court below 3rred in the exercise of a sound discretion in sending them
We have treated the special findings in this case as in the nature of special verdicts. This would seem to be proper in itself, and in the contemplation of the statute, Gen. Stat., ch. 66, section 218.
On the whole, then, we perceive no error in the action of the court below, and the judgment appealed from is, thérefore, affirmed.