Hammond v. Foster

Conger, J. This action is brought to recover a claim of 8356.36, being the balance of an account for goods, wares and merchandise, to wit, bacon, hams, shoulders and lard, sold and delivered by plaintiff to defendants, at their special instance and request, between the 1st day of December, 1879, and the 1st day of June, 1880; that said amount is now due and unpaid, etc. Defendants, answering, deny all the allegations of the complaint and set up a counterclaim, to which plaintiff replies. In the course of the trial, Sylvan Hughes, witness for defendants, testified as follows: “I was present when Bonner and Foster made the contract as to the bacon for which this suit was brought. Bonner said they had a large lot of bacon, hams, lard, etc., in Missoula county for the Butte market, and wanted to put it all in our house so as not to come in competition. We proposed to sell meat all around for fifteen cents per pound, and to continue to deliver as long as he delivered at the Butte market. Foster said, when the states bacon arrived he might have a lot on hand and could not compete with bacon from the states. Bonner said as soon as states meat arrived, whatever defendants had on hand was to be weighed up and settled for at price of states bacon, and thereafter all delivered should be at prices which it cost to lay states bacon down. The lard was to be at sixteen cents per pound. “Bonner said that no meat should come from Missoula but his. They had control of all of it. They were not [431] bound to deliver bacon after states bacon came in, but if they did, Foster & Co. were to have it. The greater portion of the lard came in forty-pound cans. There was a difference in the market of four cents per pound between forty-pound cans and cans from three to twenty pounds. There were fully two thousand pounds of lard in cans over twenty pounds. About the 13th of June, Mr. Bass, one of the plaintiffs, came to Butte with what he said was eleven thousand to fourteen thousand five hundred pounds of bacon, which he sold to others than Foster & Co. He said he had bought out the others and was on his own hook and would not deliver to defendants at price of states bacon. The market price was about seventeen cents. “Bonner guarantied that no other Bitter Boot bacon should come in. This contract covered the entire season of 1880 up to July. Bass said he had bought Bonner & Co. out, and could not stand states prices. It cost eleven cents per pound to lay states bacon down in Butte. Bonner guarantied for season of 1880. Foster was to take all they delivered. What came to Butte market was to go to Foster & Co. Bonner said they had all the meat from Missoula county for sale. What induced Foster to pay such a high price for it was that no one else should sell Bitter Boot bacon in Butte. Foster had. states bacon when Bass brought that bacon on the 14th of June.” After the introduction of this evidence, plaintiff moved to strike out a portion thereof as not warranted by the pleadings. Defendants then offered to amend their answer to make it conform with said evidence, and offered the following amendment, to wit, to be inserted after the word “lard” in line 4, page 4, in amended answer: “That by the terms of said contract, said plaintiffs guarantied and promised defendants that no Other parties should take any bacon, hams or shoulders to said Butte market from said Missoula county, of the [432] hams, bacon and shoulders of, and then ordered or put up and cured by, said plaintiffs, or said plaintiff Bass, except to defendants; but in violation of said agreement, one of said plaintiffs, said W. E. Bass, took of bacon, hams and shoulders so put up and cured by said plaintiffs, about eleven thousand pounds thereof, and sold the same to other parties in said market than defendants, to the defendants’ damage in the sum of $400. Wherefore defendants pray judgment as prayed in their answer.” In defendants’ answer there is this allegation: “Plaintiffs agreed with defendants to sell and deliver all bacon, hams, shoulders and lard, put up at their said packing house, which was intended by them for the said Butte city market, or that they should thereafter deliver in the said town of Butte to defendants, at their, defendants’, store in said Butte Oity, upon the terms and conditions hereafter set out. That said plaintiffs, as an inducement to make and enter into said contract, represented that they had a large amount of such bacon, etc., to sell in Butte City, and, if defendants would agree to purchase all of it that plaintiffs might deliver in said Butte, upon the prices and terms stated, the defendants should have the entire lot. The defendants, relying upon these representations, were induced to and did buy all of said bacon, etc., and plaintiffs agreed to deliver the same to defendants at the following prices.” The answer further states “that plaintiffs, disregarding their said agreement, did deliver and sell to others than defendants a large amount of bacon, etc., thirteen thousand pounds, to defendants’ damage,” etc. These are, in substance, the same as the amendment offered by defendants to their answer. In the amendment it is said plaintiffs “guarantied and promised.” There is not such a material difference between the answer and the amendment as to make it error for the court, in its discretion, to refuse the motion. The testimony could as well have been introduced, [433] and was introduced, under the answer without amendment. Under the pleadings the evidence was competent and material to the issues, and it was error to withdraw it from the jury. It appears that by a mistake one of the instructions which the court had given to the jury was not by them received. This instruction was material to the law of the case, and, as it was intended by the court, should have gone to the jury. The court may, in its discretion, withhold all of the ' instructions from the jury, or may allow them all to be taken by the jury; but it will not do to say that it can separate them, and give part and retain part. It is true this happened by accident, but the law is the same. Judgment is reversed, and the cause remanded for a new trial. Judgment reversed.