Llewellyn Steam Condenser Manufacturing Co. v. Malter

Thornton, J. This is an action for goods sold and delivered by plaintiff to defendants. The goods were two steam condensers or heaters. The original claim was for three condensers, but on the trial the claim for one of them was abandoned by plaintiff.

The trial was by jury, who found a verdict for plaintiff for eleven hundred dollars.

It is contended by appellants that there was no evidence respecting the price to be paid for either of the heaters, nor any evidence respecting their value.

We think there was some evidence of the price to be paid for the heaters. The plaintiffs had a list or schedule of prices for these heaters, $625 for one, and $475 for the other, and there was testimony tending to show that the contract was made with reference to those schedule prices. The defendants were to be allowed by plaintiff a commission of twenty per cent on taking and using these heaters, and this commission was to be computed on the schedule prices. ¡No other prices were mentioned in the negotiation between the parties, and the commission could be computed alone on the prices set down in the schedule.

A like contention is made as to the evidence in regard to the receipt and acceptance of the heaters. An examination of the record shows that there was evidence tending to show such receipt and acceptance.

It is contended that the court erred in its charge to the jury in regard to the value of the heaters.

On this point the court, in its charge, used this language:—

“It is claimed by the plaintiff that one of these heaters, the forty-eight-inch heater, was worth $475, and a sixty-inch heater was worth $625. If you should conclude [244]that the plaintiff is entitled to recover for both of these, the result would be that he would be entitled to a verdict for eleven hundred dollars. If you should conclude that he was entitled to recover for only one, then your verdict would depend upon which you think they are entitled to; if the forty-eight-inch heater, your verdict should be for $475; if the sixty-inch, $625.”

There was- really no direct evidence of the value of the heaters. That is to say, no witness was asked or testified what the heaters, or either of them, was worth. The evidence tended to show that the defendants contracted with plaintiff with reference to á schedule in which the prices were set down as $475 for one heater and $625 for the other. But the evidence whether defendants agreed to pay these schedule prices was circumstantial. Such agreement was to be inferred from circumstances stated by a witness. With regard to the sixty-inch heater, Jones, who acted as an agent for plaintiff in making the contract, answered to the following questions as stated below:—