Gund v. Cleveland Store Fixture Co.

14 Ohio C.C. (n.s.) 493, 1907 Ohio Misc. LEXIS 362

• Court: Cuyahoga Circuit Court
• Decided: March 11, 1907
• Status: Published

Opinion

The Cleveland Store Fixture Company recovered a judgment below against George F. Gund, as guarantor of payment by the vendee in a contract for bar furniture to be furnished by said company.

• In the view wé take of this case, it is unnecessary to consider the question whether there is a defect of parties. Gund’s guarantee was endorsed on the written contract of sale. By a separate written instrument the company promised Gund that the bar furniture should be accompanied with a union label, and this promise, he alleges in his answer, was not complied with. The plaintiff company in its reply alleges in substance:

1st. That the written promise in regard to the union label was executed and delivered subsquently to the endorsement by Gund of his guarantee upon the contract of sale, and that it was without consideration and'void.

Second. That even if valid, the promise was fully performed, not indeed by furnishing bar fixtures that were wholly union made, but by tendering to the vendee a union label that had been in the company’s possession from a former time when it carried on a union shop.

This label, it was claimed, was specifically contemplated by the terms of the written promise.

Upon the issues thus joined the jury found generally for the plaintiff company .and against Gund.

It is obvious that this result may have been reached through either of the claims set forth in the reply. If the promise in regard to the union label was made after the guarantee, and was thus without consideration and void, it is unimportant whether plaintiff fulfilled it or not. If, on the other hand, the promise means what plaintiff claims, and was fulfilled according to its meaning, it is immaterial whether it was valid or invalid. The verdict as returned implies that the union label promise was an after consideration, and therefore, unforceable; also that it was performed according to the meaning and intent of the parties. It follows that unless the errors complained of here are such .as to- vitiate both aspects of the verdict, the judgment must be affirmed, inasmuch as the verdict and judgment can rest indifferently upon either ground. McAllister v. Hartzell, 60 O. S., 69, 95; Smith v. Gardner, 57 O. S., 666; National Union v. Rothner, 57 O. S., 679; Beecher v. Dunlap, 52 O. S., 64; Tod v. Wick Bros. & Co., 36 O. S,, 370, 389; Union Cent. Life Ins. Co. v. Sutphen, 35 O. S., 360.

(See, however, The Pennsylvania Company v. Miller & Co., 35 O. S., 541, overruled, though not indeed on this point by Railroad Company v. The Bowler & Burdick Company, 63 O. S., 274, 287.) Butler v. Kneeland, 23 O. S., 196, and Sites v. Haverstick, 23 O. S., 626.

The errors complained of relate chiefly, if not wholly, to the latter issue, and we think one or two of the points made by plaintiff in error as to the admission and exclusion of evidence, are well taken. On the other issue the evidence is in sharp conflict. Mr. Gund testifying that the written promise in regard to the union label was executed and delivered before his guarantee was endorsed on the contract of sale. On the other hand the Cleveland Store Fixture Company’s agent testifies just as distinctly that it was executed afterwards. The jury is the tribunal appointed by law to solve contradictions of this sort, and we can not disturb its finding in this case as being- unsupported by the evidence; nor do we find any error in the record affecting the proper submission of this issue to the- jury.

It follows, therefore, that the judgment below must be affirmed.