Lightner v. Menzel

By the Court, Sawyer, C. J. : There is no error in denying a continuance, under the circumstances of the case, or in overruling the several demurrers.

There can be no doubt that the sureties of the defendant Menzel are liable upon all the covenants on the part of Menzel contained in the contract—that is to say, they are liable for the meats furnished defendant Menzel, and the rents due under the contract, and also for any breach that might occur in his refusing to take the meats covenanted to be taken. The damages for a breach would be limited to five hundred dollars, but for the meats actually furnished and received under the contract, the parties were liable to pay the contract price. The action is upon the contract to recover the price of meats furnished, and the rent due for one month’s occupation, according to the terms of the contract, and also for damages for a breach in refusing to take any more meats. The instructions are based upon the true theory as to the liability of the parties.

The jury could not have been misled by any such inference as is suggested, drawn from the first instruction, for the instruction asked by defendant, given as modified by the Court, in express terms rebutted such inference if any could otherwise have been drawn from it.

There was no error in modifying the instruction asked by defendant. It was, in fact, in some respects, more favorable to the defendant than in the form asked, for it extended the time for a violation by plaintiff to a later period, and gave the jury a wider range within which to find a breach by plaintiff. Besides, there was no exception taken to the modification, or the instruction given, and no question can now be made on it. The sixth instruction might as well have been omitted, but there is nothing erroneous in it. At all [460]events, it could do no harm when followed, as it was, by the seventh, and the modified instruction of defendant. IsTo liquidated damages were given for a breach of the contract by defendant. This is perfectly clear from the record; for the plaintiff claimed one thousand four hundred seventy-three dollars and six cents for meats delivered under the contract, and thirty-five dollars for one month’s rent, making one thousand five hundred eight dollars and six cents, also five hundred dollars liquidated damages for a breach in not receiving more meat. The jury found for the plaintiff one thousand five hundred eight dollars and six cents, the exact amount due for meats and rent. The delivery of the meats, and the accruing of the rents, were not put in issue at all by the pleadings. It is true, the answer in general terms denies the indebtedness, but not the delivery or amount of the meats, nor the contract to pay the rent—it does not deny the allegations of fact constituting the cause of action, but only the legal conclusion resulting from the facts. The plaintiff, so far as this issue is concerned, would have been entitled to judgment for the precise amount of the verdict, upon the pleadings without any evidence. Besides, the plaintiff proved the delivery of the meats to the amount averred, and the rents due, and there is no evidence to the contrary, although the evidence is all in the record. The jury could not have done otherwise than render a verdict for the amount which they did, without reference to the count, for liquidated damages. It is apparent, therefore, that nothing was allowed on the latter count.