
    The Louis Cook Manufacturing Co. v. Randall & Dickey.
    1. Practice: evidence: order oe introduction. A cause will not be reversed merely because secondary evidence of the contents of a written contract was admitted before the loss of the writing was established, when a sufficient foundation for the secondary evidence was afterwards supplied by the testimony of the adverse party.
    2. Contract; secondary evidence to establish. Where plaintiff succeeded to the business of C., and undertook the performance of a contract previously entered into between C. and defendants, and, in an action between plaintiff and defendants growing out of the transaction, plaintiff and C. denied the existence of the contract, it was proper to allow defendants to establish the execution and terms of the contract by secondary evidence.
    3. Corporation: ultra vires. It is not ultra vires for a corporation organized for the manufacture of certain articles to assume to fill a contract made with another for furnishing such articles.
    4 Contract: terms oe assumed by third party. Where defendants ordered goods of C. on certain terms, and plaintiff assumed to fill the order in O.’s stead, and shipped the goods to defendants, who accepted the same, plaintiff and defendants became parties to the original contract, and were both bound by the terms thereof.
    5. -: TO FURNISH GOODS ON CREDIT: MEASURE OE DAMAGES EOR breach oe. Where plaintiff, doing business at Cincinnati, Ohio, assumed to furnish on credit to defendants vehicles for sale at .Des Moines, Iowa, with the sole privilege to sell such vehicles in certain counties, the element of credit became an important element in determining the damages to which defendants were entitled upon a breach of the contract; and the measure of defendants’ damages for such breach was the difference in the contract price of the vehicles and their market value in the city of Des Moines, with the exclusive privilege of selling such vehicles in the counties named in the contract, less the expense of bringing the vehicles from Cincinnati and fitting them up for the Des Moines market.
    6. -: language oe trade: evidence. Where in a contract language is used which has a peculiar meaning understood by the trade, that meaning must be followed in enforcing the contract, and evidence of such meaning is properly admissible.
    
      Appeal from Polk Circuit Court.
    
    Friday, December 7.
    
    AotioN at law upon an account for certain buggies and other goods ordered by defendants of plaintiff. There was a judgment upon a verdict for plaintiff for a part of the claim, from which it appeals. The facts of the case are stated in the opinion.
    
      William Phillips, for appellant.
    
      Wowrse & Kauffman, for appellees.
   Beck, J.

I. The petition alleges that plaintiff is a corporation existing under the laws of the state of Ohio, and succeeded to the business of Louis Cook, in the manufacture and sale of buggies and other goods. That defendants, who had made purchases of Louis Cook, ordered from him certain goods. As the plaintiff had succeeded to his business, the order was.by him delivered to plaintiff to be filled, which was done. This action is brought to recover the value of the goods delivered to defendants by plaintiff under such order.

The defendants in their answer admit the order for the goods and the receipt thereof, but allege that the purchase was made under a contract with Louis Cook, to the effect that buggies and other goods ordered should be furnished at prices named, upon thirty, sixty, ninety, or one hundred and twenty days, when ordered in car load lots, and that defendants were to have the exclusive right to sell the articles manufactured by plaintiff, in Polk and five adjacent counties of the state. The contract was expressed in a written order given by defendants, which was accepted by Louis Cook. Under this contract, defendants oi’dered the goods mentioned in the account sued upon, which were furnished to defendants by plaintiff under an order to Louis Cook.

The answer, admitting the receipt of the goods specified in the account sued on, alleges that the contact is in the possession of Cook or plaintiff, or is lost or destroyed; that plaintiff assumed its performance, but did violate its conditions by selling like goods described therein to other persons within tbe counties mentioned in tbe contract; by refusing to sell upon tbe time provided for in tbe contract; by refusing to sell to defendants more than one car load at one time; and by refusing to ship to defendants goods by tbe car load until tbe bills for prior shipments to them bad been paid. It is alleged that, by reason of these breaches of tbe contract between tbe parties, defendants sustained damages to tbe amount of $4,000, which they plead as a counter claim to plaintiff’s action.

Plaintiff in its replication denies that defendant and Louis Cook entered into a contract of tbe character alleged in defendants’ answer, and denies that any such order as is pleaded therein was given by defendants to Louis Cook, or ever existed. It admits that it succeeded to tbe business of Louis Cook, but denies that it assumed bis contracts and liabilities set up by defendants. All other allegations of tbe answer are denied.

Other allegations of tbe pleadings need not be here recited. It will be observed that tbe account sued on is admitted, and the only issues between tbe parties involve tbe counter claims of defendants.

II. We will consider tbe objections to tbe judgment relied upon by plaintiff in tbe order of their discussion by counsel. It is first objected that there was no competent evidence submitted at tbe time tend-jjjg establish tbe contract. Tbe contract itself was not introduced in evidence. Defendants testified that it was reduced to writing in tbe form of an order written by Cook and- signed by defendants, which was orally accepted by Cook before be transferred bis business to plaintiff. It was kept by Cook, or left in bis possession. Upon this evidence defendants were permitted to prove the contents of tbe instrument. If it be conceded that, when this proof was offered, tbe evidence was insufficient to show the loss of tbe instrument, or that proper efforts were not made to cause its production at tbe trial by Cook, yet, in view of tbe answer of plaintiff, denying tbe existence of tbe contract, and tbe testimony of Coot subsequently given, that be bad not at tbe time and never bad possession of tbe instrument, and that it in fact never bad an existence, there is no prejudicial error in admitting proof of its contents at tbe time sucb evidence was admitted. Coot’s evidence, if given at or before tbe time tbe secondary proof was admitted, would have been sufficient to authorize it. As be subsequently supplied the required proof, no prejudice resulted from admitting tbe secondary evidence at tbe time it was introduced. ¥e will not reverse a case upon tbe ground that evidence is not admitted in tbe proper order, or for the reason that a fact which should be proved in tbe first instance by one party is established by tbe testimony of the other.

Counsel for plaintiff insists that, as Cook was not a party to tbe suit, no parol evidence of the contents of tbe instru-ment was competent therein. "We think this position applied to tbe facts of this case is not supported by the authorities cited by counsel, nor by principle. Under tbe pleadings of the case, and the evidence of defendants, their theory of tbe case is that tbe plaintiff by undertaking to perform Cook’s contracts, as successor to bis business, became bound by tbe contract with them; that it in fact became plaintiff’s contract. It was under this theory necessary for defendants to establish, first, that tbe contract was entered into, and then to show that plaintiff assumed its performance. In order to establish the original contract, they were compelled to resort to secondary evidence, as we have just shown. The contract was in fact tbe contract of plaintiff, having so become by bis undertaking to perform it. As its existence was denied by plaintiff and by Cook, it was a proper subject of secondary evidence, as we have above shown.

III. It is insisted that tbe plaintiff, under its charter or articles of incoi’poration, bad no authority, to assume tbe performance of tbe contract with Cook. Tbe business of plaintiff is tbe manufacture and sale of buggies and other articles. Of course, it has authority to accept orders for such goods upon terms usual in such business. It surely had authority to assume the filling of an order accej>ted by Coot, upon the terms made by him, which, it appears, was in accord with the usual course of the trade. This is just what plaintiff did in this case.

IY. It is said that the cross petition and proof do not show that plaintiff agreed to perform Cook’s contract, and ^at there is no agreement between plaintiff and defendants proved. Defendants gave the order to q00]c uric]er ¿fie contract with him; plaintiff assumed to fill it, and shipped the goods for which suit is brought, which were received and accepted by defendants. Surely the law will imply a contract between plaintiff and defendants. The plaintiff, by filling the order, became, as we have seen, bound by its terms. Defendants, by accepting the goods, became bound to plaintiff according to the conditions of the contract which plaintiff had assumed. The point demands no further attention.

Y. The circuit court gave to the jury an instruction in the following language:

“In determining whether .or not the plaintiff assumed to perform Louis Cook’s part of the alleged contract with defendants, you should take into consideration the relation of the parties, the manner in which the business was done, all thevr acts and declarations, the manner in which orders were received, shipments made, and all other facts cond circumstances fairly tending to show what the ago^eement toas.”

This instruction is, we think, correct. The fact that .plaintiff was the successor of Cook in business is a matter pertaining to their relations, and its acceptance of orders given originally to Cook pertains to the manner of their business. The acts and declarations of these parties, so far as shown by the evidence, are contemplated by the instruction. These, with the other matters referred to, were properly considered by the court as facts from which the jury were authorized to find that plaintiff assumed Cook’s contract.

VI. The circuit court directed tbe jury in the following language: “If upon inquiring, as before directed, you find that the defendants are entitled to damages, you will then proceed to determine the amount you will allow. The measure of defendants’ damages ° for a refusal to sell them vehicles under the contract is the difference in the contract price of the vehicles refused to be furnished and their market value in the city of Des Moines, with the exclusive privilege of selling that make in the counties named, less the expense of bringing said vehicles from Cincinnati, Ohio, and fitting them up for the Des Moines market.”

The views of plaintiff’s counsel upon the subject of the measure of damages are expressed by an instruction asked by him at the trial and refused. It is as follows:

“That if you find there was a contract existing between defendants and Louis Cook, such as alleged in the petition, and you find that the plaintiff agreed to perform the' same, and undertook such performance, and you find that it refused to sell the defendants the goods named on the time specified, but was ready and willing to furnish said goods to defendants as they wanted them, and offered so to do, for cash, or in car lots on time or credit, then the defendants should have taken said goods and paid cash therefor, or taken the same on credit, one car at a time, and plaintiff would be liable only for the interest at six per cent for the time credit was to be given.”

The rulings of the circuit court upon these instructions are correct. The object of defendants in making the contract for time was to be able to deal in the goods upon credit. Now, to say that credit is refused, when the' contract provides that it shall be given, the defendants being required to purchase for cash, is to deprive them of the very benefits the contract contemplates they shall receive. It is true, as is said by counsel for plaintiff, that defendants were required to do “all they reasonably could do to prevent damages.” But to require them to pay cash when they had contracted for credit, is not within the bounds of reason. The condition as to credit was an important and essential provision of the contract. The law will not presume that defendants could have paid cash for the goods, and it surely did not require them to do what they are not shown to have been able to do.

VII. The plaintiff insists, and requested the circuit court to so instruct the jury, that the measure of defendants’ damages is the difference between the contract price and the value of the goods at Cincinnati. The position is not correct. The buggies were purchased for sale in Des Moines, and, while plaintiff by the terms of the contract was to deliver them upon the cars at Cincinnati, this did not imply anything more than that defendants were to pay transportation to Des Moines. But if defendants acquired the absolute property in the buggies when they were delivered to the carrier at Cincinnati, plaintiff’s contract contemplated that defendants were to sell them at Des Moines. The prices at the last named city control in fixing the measure of damages.

VIII. The contract and order for the buggies specified “top buggies with poles.” A witness engaged in the trade was Permitted to testify against plaintiff’s objec-ti°n that these words in the order would be understood to mean a common grade of buggies. The evidence is competent. The language had a meaning understood by the trade, and that meaning must be adopted in enforcing the contract. It is very common for the courts thus to obtain the true meaning of the language of contracts.

IX. Numerous objections are made to instructions given, which are really but criticisms upon the language used therein. - By these criticisms counsel seeks to interpret the instructions so that they are made to express thoughts other than those intended by their plain language, which expresses rules in harmony with the law. The consideration of these criticisms would be without profit to the parties.

2. The evidence was conflicting, and- there is no ground for disturbing the verdict as being unsupported by the evidence. The judgment of the circuit court will be

Affirmed.  