Kiley v. Lee Canning Co.

By the terms of the contract, the defendant’s agent was the sole judge of the time when the peas were to be cut and delivered. The learned county judge construed the contract to authorize a rejection of the peas by the defendant if they were not in all respects suitable for canning, under the terms of the contract, unless they were rendered unsuitable by the fault of the defendant’s agent in failing to direct their delivery in proper season. The contract is a hard one for the plaintiff. The defendant can make no complaint if the plaintiff be required to conform strictly to its terms, except for the fault of its own agent. By the verdict of the jury it has been determined that the condition of the peas was defective solely by reason of the delay in the order for delivery by defendant’s agent.

*988'. The order for the delivery of the peas was given by Sherill, the defendant’s agent, upon the 31st day of July. The plaintiff swears that he was told to deliver them upon the 1st or 2d of August. Sherill, the agent, swears that he told Kiley that it would do to keép the peas until Monday, but he told him he was to deliver his peas in the next two days—Friday and Saturday.- At the same time he delivered to the plaintiff two slips of paper, upon one of which was stated the name of the grower as Maurice Kiley, the variety of the peas as Prince of Wales, the acreage as one acre, when ordered in, "August first”; upon the other of which was the name of the grower as Maurice Kiley, the variety of the peas as Market Garden, the acreage as one acre, when ordered in, “August second.” Both ’ these slips of paper were signed by Sherill. Defendant contends that at least no recovery can be had for the Prince of Wales peas, except for the single load delivered upon August 1st, because they were not delivered upon the day when they were ordered according to the written slip. The plaintiff, when he received the slips, did not read them, put them in his pocket, and relied upon the verbal direction of the agent as to the time of delivery, according to which he had two days—August 1st and 2d—for the delivery of all the peas. The learned county judge charged the jury, if the plaintiff understood that the peas might be delivered either upon the 1st or the 2d, and if Sherill had reason to expect that the plaintiff would rely upon the verbal direction thus given, and not be governed and controlled wholly by the written notice which he had served or was about to serve, that the plaintiff had the two days within which to cut and deliver the two acres of peas. There is no specification in the contract that the time of the cutting shall be specified by written order of the defendant. Having given explicit direction that they were to be cút and delivered the 1st and the 2d' of the month, the plaintiff had the legal right to rely upon that order unless his attention was specifically called to the fact that that order was intended to be changed by the written paper given to him. Under the evidence, it appears that both crops were equally matured, and that it was immaterial which should be first deliv- . ered. The written papers so delivered by the agent made no legal change in the verbal directions which had been given, and which were relied upon. It would seem to be immaterial whether or not Sherill understood that the plaintiff relied upon those verbal directions. The defendant could ask no more favorable charge upon this question than was given by the court.

The principal contention upon the facts arose upon the time of the delivery of the second load, and the condemnation of the peas by the defendant. The evidence of the plaintiff is to the effect that such delivery was upon the 2d of August, the day after the first load was delivered. The defendant contends that such delivery was not until the 5th of August, which, it is claimed, accounts for the fact that the peas were not then in proper condition for canning. It can hardly be claimed that the evidence did not present a fair question of fact for the determination of the jury. With this sharp question of fact thus presented, defendant complains that the court *989allowed the plaintiff to prove by one Gilmartin, for whom the plaintiff's son John was working at or about that time, that upon the 2d day of August the plaintiff’s son asked to be relieved “for the purpose of helping his father.” It is not questioned that the second load of peas was drawn by the son John. The sole question is as to the date upon which it was drawn. Gilmartin swore that John was working for him at the time, and that he excused John from work upon the 2d of August, and that upon the 5th of August, the day upon which the defendant claims the load was delivered, John was working for him under his direction. With the fact conceded that the second load was drawn by John, and the only fact contested the date upon which it was drawn, the evidence of John’s request to be excused for the purpose of helping his father .could harm nothing. The evidence of Gilmartin that he was in fact excused and did not work for him upon the 2d, and that he did work for him upon the 5th, was clearly competent evidence bearing upon the question when the second load was delivered.

Upon the attempted delivery of the second load by John the peas were rejected, and the statement made by defendant’s agent that they cared for no more peas. This excused further tender on the part of the plaintiff. Word was sent to the plaintiff to come down that afternoon, and the defendant’s manager would settle with him. He went to the defendant’s factory. The defendant’s manager pleaded lack of time, and postponed the settlement, which was afterwards postponed from time to time by the defendant until plaintiff was compelled to bring this action.

The rule of damages as stated by the court was the difference between the contract price of the peas and their market value. The defendant contends that there was no evidence of market value, and therefore there was no evidence upon which any proper verdict could have been reached under the rule of damages stated. In the testimony of one of the defendant’s witnesses it was stated that the only market for old or dried peas was with the defendant. The plaintiff, however, swore that the fair market value of those peas, as they were thus left upon his hands, was about 50 cents a bushel-This evidence was submitted to the jury, and they have found, upon balancing the accounts, and allowing a market price for the peas at 50 cents a bushel, that the plaintiff was entitled to a verdict of $77.64. This verdict, we think, is based upon sufficient evidence.

Defendant further insists that the learned county judge committed error in admitting evidence to which objection was duly- made. While some of the evidence to which the defendant objected was probably irrelevant, and perhaps improperly admitted, upon a careful examination of the evidence, and in view of the issue finally submitted to the jury, we are satisfied that such evidence was without influence in the determination of the verdict, and that the receipt of such evidence constituted no 'error for which this judgment should be reversed. •

The judgment should therefore be affirmed, with costs.

Judgment and order affirmed, with costs. All concur.