Prichard v. Deering Harvester Co. ( 1903 )

Dodge, J.

Tbe question upon which recovery was made to depend in tbe trial court, namely, whether plaintiff mistakenly believed that at date of tbe fire a new contract existed, covering tbe season of 1899, was material only in case plaintiff’s liability to maintain insurance depended upon tbe fact so believed in. If be owed that duty otherwise, tbe mistake as to existence of tbe new contract certainly cannot be conclusively presumed to have induced him to compromise and satisfy tbe damage resulting from breach of sucb duty. Tbe court expressly instructed tbe jury that plaintiff would not have been bound to maintain insurance if tbe new contract bad not been finally accepted prior to January 10, 1899. Appellant contends that respondent was so bound by tbe contract for tbe “entire season of 1898.” If so, all other subjects of discussion become immaterial. We therefore proceed to consider that document. By its terms, all goods received by respondent remain tbe property of tbe company, and be agrees to bold them “as a special deposit for it, until it shall be fully settled witb.” Tbe evidence certainly did not show conclusively that at tbe time of tbe fire these goods bad been sold and delivered, nor that tbe company bad been fully settled witb. They were, therefore, in respondent’s bands ás a special deposit for appellant. We cannot doubt that they were “company’s goods on band,” within tbe paragraph of tbe contract requiring maintenance of insurance. Every reason for tbe latter requirement would indicate identity between tbe goods wbicb wexe to remain the company’s property on special deposit, and those which must be kept insured in its name. Neither can we doubt that the duty to insure was commensurate in time with the duty to hold the goods as special deposit. This term, according to the words of the contract, runs until the goods are delivered, and would therefore -prima, facia require maintenance of insurance so long as they remained in respondent’s possession.

The circuit court seems, however, to have considered that these plain words were overcome in some way and some other limit to plaintiff’s duty prescribed. Respondent’s counsel seems to deduce such result from the provisions of the first paragraph of the contract, whereby plaintiff is appointed agent for “the entire season of 1898.” The argument is faulty in more respects than one. Thus, the period of time covered by the “entire season of 1898” is not very certain. Does that mean merely until the season for selling harvesters and mowers is over, or until the next annual season commences ? From our general knowledge of such agency contracts, and from matters appearing in the evidence and the correspondence, the latter seems the more probable meaning. We find correspondence and dealings between these parties indicating a mutual understanding that plaintiff was the local representative of defendant at dates remote from the harvest season; and it is, we believe, customary with farm implement dealers to maintain local agencies the year round, accessible for information, for obtaining extra parts, and the like; also for keeping of machines and extras left over after harvest, instead of reshipping the same to the factory. If the words in question were intended to cover a period of a year, or until agency contract for 1899 should be perfected, of course the loss occurred within the term, for the contract did not take effect until February 8, 1898, and its year had not expired. But whatever the significance of these words, they, at most, serve only to prescribe the term of plaintiff’s agency, and do not expressly limit tbe period during wbieb be agrees to safely bold tbe goods and maintain insurance. It is entirely consistent that, in consideration of bis employment as agent for a shorter period, plaintiff should agree to safely keep and insure all goods until delivered up to bis principal, and we cannot think tbe plain words of tbe contract to that effect are overcome by prescribing tbe season of 1898 as tbe term of tbe agency. That tbe parties did not understand them to be so limited is plainly shown by tbe acknowledgment given October 28, 1898, long after harvest, specifying tbe goods then remaining, and agreeing to keep and bold tbe same under the terms of the agency contract.

We are satisfied that tbe true construction of tbe existing contract required plaintiff to maintain insurance upon tbe defendant’s goods in bis possession January 10, 1899, and therefore that tbe circuit court erred in instructing tbe jury that no such duty rested on him unless tbe new contract bad been completed before that date, and that be might recover back if be paid on mistaken supposition of such completion. For tbe same reasons, we must bold that error was committed in denying defendant’s motion to direct a verdict in its favor.

Inasmuch as these errors, with due exception, appear in tbe proceedings prior to verdict and judgment, no motion for a new trial was necessary to make them available on appeal, and we need not consider some questions of practice which are raised upon tbe sufficiency of that motion and mode of its disposal.

By the Oourt. — Judgment reversed, and cause remanded for new trial.