Hitchcock v. Turnbull ( 1890 )

Mitchell, J.

Appeal from a judgment on the pleadings against the defendant. The correctness of the action of the court in ordering judgment on the pleadings depends upon the question whether the answer raised any issue of fact as to whether the plaintiffs furnished and delivered to the defendant the articles for the recovery of the purchase price of which this action is brought within the time required by their contract, which, in the absence of any express stipulation on the subject, would be a reasonable time, under all the circumstances, after the defendant gave the order for them. The parties have followed the common, but very objectionable, practice of pleading mere matters of evidence, from which it is rather difficult to pick out traversable allegations of material facts. But a careful examination of the answer satisfies us that all its allegations as to the time when the articles should have been delivered, and when they were in fact delivered, are insufficient, either because based upon a confessedly false statement of the terms of the contract or because not sufficiently broad to show any breach of it. It appears from the allegations of the complaint, and admissions of the answer, that the contract was that plaintiffs were to manufacture the articles at Cleveland, Ohio, and deliver them to defendant on board the cars at that place. It is true that the defendant in his answer attempts to claim that the contract was that the articles were to be delivered at Minneapolis, but this is a mere legal conclusion, sought to be drawn from the written exhibits attached to the pleadings, an inspection of which conclusively shows the contrary. Hence the material question was what would have been a reasonable time in which to manufacture the goods and deliver them on board the cars at Cleveland, while the only allegations of the answer as to the time of delivery, or that an unre asonable time was consumed in the manufacture and delivery of the articles, has reference to delivery in Minneapolis. Again, the allegation that two days from the time of the commencement of the work would have been a reasonable time for the manufacture of the goods entirely fails to cover the ground; for, even if the allegation be true, it does not follow that two days from giving the order was a reasonable time in which to deliver the goods on board the ca.rs. It is nowhere alleged that plaintiffs were required, either by express stipulation- or by implication from the usual course of business, to commence work immediately on receipt' •of defendant’s order.

In reference to the counterclaim attempted to be set up, all that is necessary to be said is that, within the rule laid down in Frohreich v. Gammon, 28 Minn. 476, (13 N. W. Rep. 88,) and Liljengren Furniture Co. v. Mead, 42 Minn. 420, (44 N. W. Rep. 306,) there are no allegations of any extrinsic facts or circumstances constituting any basis for the recovery of the special damages claimed. Hence, even if the answer contained allegations showing a breach of the contract, the defendant could, under his answer, recover only, nominal damages; and he is not entitled to a trial merely for the purpose of recouping or offsetting nominal damages against plaintiffs’ claim, as this could not affect even the matter of costs. Harris v. Kerr, 37 Minn. 537, (35 N. W. Rep. 379.)

Judgment affirmed.