United Fruit Distributing Co. v. Stone

The plaintiff commenced an action ■to recover a judgment for money. The defendants answered and a trial was had before the trial court sitting with a jury. The jury returned a verdict in favor of the defendants and from a judgment entered thereon the plaintiff has appealed.

In its complaint the plaintiff pleaded its case in two counts—(1) for goods sold and delivered, and (2) for a balance due on an open book account. The answer denied all of the material averments in the complaint. In an amended answer the defendants set up a written contract, alleged to have been executed by the parties, and thereupon they alleged that the plaintiff had wholly failed to perform the same. In asking permission to make the amendment the defendants stated in open court that their purpose was to clearly present the issue that there had been no delivery. The plaintiff asserts that there was no evidence to sustain the verdict, and it addresses its contention to each count separately. In the view we take of the case we will consider both points together.

As throwing much light on the controversy, certain surrounding circumstances are of importance. Big Valley in Lake County is given up very largely to…