
    White Sewing Machine Company v. Mahoney, et al.
    (Decided January 14, 1914.)
    Appeal from Daviess Circuit Court.
    Appeal — When Finding of Fact by Jury Will Not Be Set Aside. — • Where the jury is properly instructed, its finding of fact will not be set aside upon appeal, where it is not flagrantly against the weight of the evidence.
    E. B. ANDERSON for appellant.
    J. R. HAYS and ALBERT B. OBBRST for appellees.
   Opinion of the Court by

Judge Miller

Affirming.

The appellant brought this action to recover $1,146.00, the purchase price of fifty sewing machines which it sold to'the appellees, of Owensboro, in April 1911.

The action was brought upon a drummer’s written order which was signed by the appellees and accepted by the appellant. Appellees answered that the order was signed by a mistake upon their part .and through the fraudulent representations of Shea, the drummer, in which he had agreed to send retail salesmen to Owensboro to demonstrate and sell the machines for appellees, the commission to be divided! between appellees and the salesmen; and that the drummer had complied, in part only, with his said agreement.

Appellees further answered that by reason of the failure of the appellant to carry out the contract for furnishing the salesmen, they still had on hand twenty, machines, which represented $460.00 of the purchase price. They made their answer a counterclaim, and asked that plaintiff be compelled to accept s.aid twenty unsold machines and credit the account sued on by the sum of $460.00; for a judgment against plaintiff for $120.00 storage upon said machines; and $220.00 profits which they would have made on a sale of the remaining twenty machines, if appellant had carried out its contract.

Appellant replied traversing the allegations of fraud and misrepresentation and denying Shea’s authority to make the contract for the service of the salesmen above referred to.

The jury returned a verdict for appellant for $732.80 with interest- and directed that the twenty machines on hand be returned to the plaintiff. From a judgment upon that verdict the plaintiff' appeals.

For a reversal appellant insists- that the circuit court erred in refusing to peremptorily instruct the jury to find for the plaintiff, and also in instructing the jury.

By their verdict the jury substantially gave the plaintiff the purchase price for the thirty machines which appellees had sold, and required them to return the remaining twenty machines to appellant and dismissed appellees’ counterclaim.

The single issue between the parties was this: Was the contract a sale as contended by appellant, or was it an agreement by the appellees to sell the machines through the salesmen of the appellant, dividing the commissions between them? The charge of fraud and misrepresentation was incidental merely to the question of tie contract between the parties. The circuit court, instructed the jury upon both phases of the question, and the jury found the contract to be as claimed by the appellees. Under this state of fact, there being evidence upon both sides of that proposition, it is not the province of this court to lightly set aside the verdict. "Clearly, it was not flagrantly against the weight of the evidence.

Judgment affirmed.  