Speck v. Maduro Mercantile Co.

Dowling, J. (dissenting):

I agree that the verdict rendered herein is probably a just one, and fairly determines the issue between the parties. I also agree that the theory of the trial court as to the meaning and effect of the agreement in question is entirely erroneous and cannot possibly be sustained. But the law applicable to this particular case was enunciated by the trial court and no objection thereto having been taken by either party, it is binding on them not only for the trial but upon appeal as well. The rules of law so applicable were declared to be, that plaintiff must establish, in order to recover, first, that the accounts were with the Union Packing Company; second, that the accounts went over to the defendant, that is, as the court was careful to reiterate, that the same business that was being done with the Union Packing Company was transferred to defendant; third, the period of time for which business was done with each account by defendant, as the payment was to be fifty dollars in advance for each period of six months, during the term of two years, and if business ceased with any account no further liability was incurred thereon to plaintiff. Plaintiff, I think, sustained the burden of proof on the first and third elements of recovery. It is plain that the second element was incorrectly charged to be necessary for plaintiff to prove. For neither party to the agreement has ever claimed that it was necessary that the accounts which “ went over ” were to represent the same business done with defendant, that was done with plaintiff — that is, the forwarding business. Defendant never was in that line of business; plaintiff never gave it up. Plaintiff claims that the accounts “ went over ” if the parties did business with defendant in its line of jobbing or selling merchandise. Defendant claims it was only hable to plaintiff if its “ accounts ” did business with it on the “ resident búying ” line, though coneededly it never did any business of that character, though organized therefor. If the case had been properly submitted, plaintiff’s verdict could be sustained on his theory of the meaning of' the agreement. But both parties accepted the court’s charge as correctly stating the law of the case, and plaintiff did not object or except to the burden of proof laid upon him by the charge. Coneededly there was no evidence that plaintiff’s “ accounts ” ever did a similar business with defendant to that which they did with plaintiff, as forwarder. Hence the verdict was unwarranted and was properly set aside. I, therefore, vote for the affirmance of the order appealed from. Logically, this would lead to the dismissal of the complaint as well. But we have discretionary power to grant a new trial, and I would favor giving plaintiff an opportunity of proving his cause of action under proper rules of law. I favor affirming the order appealed from and granting a new trial, with costs to appellant to abide the event.

Order so far as appealed from by plaintiff reversed, with costs to plaintiff, and the verdict of the jury reinstated.