DocketNumber: No. 162
Citation Numbers: 5 Ohio Law. Abs. 757
Judges: Lloyd, Richards, Williams
Filed Date: 10/18/1927
Status: Precedential
Modified Date: 7/20/2022
OPINION OP THE COURT.
The following is taken verbatim from the opinion.
Plaintiff in error seeks to reverse the judgment entered upon this verdict, first contending that the contract under consideration is in violation of the Constitution of the United States and of the State of Ohio and of the anti-trust acts, so called, of the federal and state governments. We have examined the brief of the plaintiff in error and find no adequate reason advanced therein to justify such conclusion, especially in view of the decision of the Supreme Court of Ohio in List v. Cooperative Assn., 114 OS. 361, that eo-onerative associations, of the character of plaintiff, are lawful and that contracts like that here in question are not in contravention of the constitutional provisions or statutory enactments,
The error, of which plaintiff in error particularly complains, is that the trial court excluded certain testimony offered by him at the trial. The evidence shows that the making oj. the agreement in question was broached to defendant by one Carl Greek, who was the representative of plaintiff in the solicitation of members, and defendant claims, and offered to prove, that he would not have signed the agreement except for the representations, made to and relied upon by him, that if he would sign the contract and become a member of the association, the business would be profitable in that he would receive from three to six Cents a dozen more for his eggs than he could otherwise obtain, and that, by the shipment of eggs in carloads, the defendant would receive further benefit and profit.
The alleged statement did not involve the assertion of a past or an existing fact, and we, therefore, are of the opinion that the trial court did not err in excluding this testimony.
Plaintiff in error claims, also, that the question of the amount of the damages, if any, should have been submitted to the jury because the measure of damages, as stipulated in the contract, is in the nature of a penalty rather than damages actually sustained. With this contention we do not agree for the reason that the nature of the contract is such that it is apparent that damages for breach thereof, of the character alleged, would be uncertain as to the amount and incapable of proof. The contract shows that the parties intended to fix the measure of damages as provided therein, and, considering the purposes sought to be attained thereby, we cannot say that the damages, as stipulated, are so unreasonable as to be considered unjust and in the nature of a penalty.
Judgment affirmed.