Nichols v. Howe ( 1890 )

Gilfillan, C. J.

Whether the plaintiff was employed by defendant to sell the wheat deliverable in July, 1882, and whether it was intended between them to be an actual, bona fide contract for the sale of the wheat, or a mere gambling upon a rise or fall in the price of wheat during July, were, on the evidence, questions for the jury; and they were fairly left to them by .the court. On the evidence, it is immaterial that the cause of action arose immediately on the default to deliver the wheat in July, 1882, or only the following year, when plaintiff settled with the purchasers; for in neither ease did the statute of limitations bar the action. The defendant, at the commencement of the action, had resided in this state but about two years; and it does not appear that the cause of action was barred in the state where it arose. Assuming the sale to have been bona fide, the damages for its breach were to be measured by the price of wheat in July, 1882. The price in 1883 was immaterial. As the business was to be done at the board of trade in Chicago, it was, there being no express agreement to the contrary, to be done subject to the usages and rules of that body, — among them, that providing for arbitrators to determine what was to be taken as the price of wheat, during any period; in settling contracts for sale or purchase deliverable during such period.

As to all the foregoing matters the action of the court below was correct, but it committed an error in the matter of evidence. The fact of authority from defendant to plaintiff to sell the wheat was in issue, not only in the pleadings, but in the evidence. The error we refer to consisted in allowing to stand, against a motion to strike out, an answer of a witness giving, in effect, the contents of a telegram claimed to have been sent by defendant to plaintiff, containing an order to sell the wheat. The telegram was not produced, nor was it shown to have been lost or destroyed. The question answered did not indicate that the answer might give, in effect, the contents of the telegram; so that the defendant had no opportunity to make the objection until the question was answered. For this reason there must be a new trial.

Order reversed.