Groff v. Cook
Citation | 157 N.W. 973,34 N.D. 126 |
Decision Date | 19 April 1916 |
Court | United States State Supreme Court of North Dakota |
Appeal from the District Court, Cass County, C. A. Pollock, J.
From a judgment in plaintiff's favor and from an order denying motion for new trial, defendant appeals.
Affirmed.
Karl J Hjort (John Carmody, of counsel), for appellant.
On a sale of personal property the acceptance by the buyer is just as vital to a recovery as is the existence of the contract to sell. Dinnie v. Johnson, 8 N.D. 157, 77 N.W. 612; Stone v. Browning, 51 N.Y. 211; Caulkins v Hellman, 47 N.Y. 449, 7 Am. Rep. 461; Taylor v Mueller, 30 Minn. 343, 44 Am. Rep. 199, 15 N.W. 413; Rindskopf v. DeRuyter, 39 Mich. 1, 33 Am. Rep. 340; Browne, Stat. Fr. § 138, E.; 20 Cyc. 249; Grimes v Van Vechten, 20 Mich. 410; Webber v. Howe, 36 Mich. 150, 24 Am. Rep. 590; Smith v. Brennan, 62 Mich. 349, 4 Am. St. Rep. 867, 28 N.W. 892.
The carrier, the railroad company, had no independent or separate authority to act for defendant in receiving the goods for transportation. There is no proof of such condition in this case, and hence there is no such acceptance as will take the case out of the statute of frauds. Grimes v. Van Vechten, 20 Mich. 410; Smith v. Brennan, 62 Mich. 349, 4 Am. St. Rep. 867, 28 N.W. 892; Waite v. McKelvey, 71 Minn. 167, 73 N.W. 727; Fontaine v. Bush, 40 Minn. 141, 12 Am. St. Rep. 722, 41 N.W. 465; 23 Century Dig. title Stat. of Frauds; 20 Cyc. 249, and cases therein cited.
One seeking to charge the principal must prove the agent's authority. Kornemann v. Monaghan, 24 Mich. 36; Rice v. Peninsular Club, 52 Mich. 87, 17 N.W. 708.
The statements of one who assumes to act as agent do not constitute evidence of authority, nor are they proof of agency. Hirschfield v. Waldron, 54 Mich. 649, 20 N.W. 628; Grover & B. Sewing Mach. Co. v. Polhemus, 34 Mich. 247; Reynolds v. Continental Ins. Co. 36 Mich. 131; McDonough v. Heyman, 38 Mich. 334.
Entries made by a clerk or agent must have been made by the person while acting in the discharge of his duty or in the usual course of his employment, and under the authority of his employer, in order to constitute evidence. Kelley v. Crawford, 112 Wis. 368, 88 N.W. 296; Nicholls v. Webb, 8 Wheat. 326, 5 L.Ed. 628; 17 Cyc. 393; Carlton v. Carey, 83 Minn. 232, 86 N.W. 85; Connecticut Mut. L. Ins. Co. v. Schwenk, 94 U.S. 593, 24 L.Ed. 294; Union Electric Co. v. Seattle Theatre Co. 18 Wash. 213, 51 P. 367; 17 Cyc. 393.
The intention and understanding with which an admission is made may always be shown as affecting its weight. State v. Paxton, 65 Neb. 110, 90 N.W. 992.
Where a contract is pleaded, the proof must be directed to the establishing of that particular contract. The pleading and proof must be the same. Clarke v. Gray, 6 East, 567, 2 Smith, 622, 4 Esp. 177; Thornton v. Jones, 2 Marsh. 287, 6 Taunt. 581, Holt, N. P. 164; Greenl. Ev.; Colt v. Miller, 10 Cush. 51; Titus v. Ash, 24 N.H. 319; Gragg v. Frye, 32 Me. 283.
A verdict or decision that, under the evidence, is contrary to the law governing the case, must be set aside; also if a verdict is contrary to the weight of the evidence, it must fall. Benedict v. Lawson, 5 Ark. 514; Crocker v. Garland, 7 Cal. Unrep. 275, 87 P. 209.
This court has the right to set aside a verdict when only supported by a scintilla of evidence. It is in cases where there is a substantial conflict in the evidence, that courts refuse to interfere. Fuller v. Northern P. Elevator Co. 2 N.D. 220, 50 N.W. 359.
A statute authorizing a new trial "for insufficient evidence" confers power to grant a new trial where the verdict is against the weight of the evidence. McDonald v. Walter, 40 N.Y. 551; Inland & S. Coasting Co. v. Hall, 124 U.S. 121, 31 L.Ed. 369, 8 S.Ct. 397; Metropolitan R. Co. v. Moore, 121 U.S. 558, 30 L.Ed. 1022, 7 S.Ct. 1334; Fuller v. Northern P. Elevator Co. 2 N.D. 220, 50 N.W. 359; Reynolds v. Lambert, 69 Ill. 495; Fox River Mfg. Co. v. Reeves, 68 Ill. 403; Blake v. McMullen, 91 Ill. 32; Reid v. Colby, 26 Neb. 469, 42 N.W. 485.
Harry Lashkowitz, for respondent.
The statute of frauds cannot first be raised in the appellate court. It must have been approached by pleading and proof in the lower court. Willard v. Monarch Elevator Co. 10 N.D. 407, 87 N.W. 996; Prior v. Sanborn County, 12 S.D. 86, 80 N.W. 169; Meldrum v. Kenefick, 15 S.D. 370, 89 N.W. 863; Poirier Mfg. Co. v. Kitts, 18 N.D. 556, 120 N.W. 558; MacGregor v. Pierce, 17 S.D. 51, 95 N.W. 281; McCabe v. Desnoyers, 20 S.D. 581, 108 N.W. 341; Schuyler v. Wheelon, 17 N.D. 161, 115 N.W. 259.
The transaction here involved is one of seller and purchaser of personal property, and there is no question of agency involved. Behling v. Wisconsin Bridge & Iron Co. 158 Wis. 584, 149 N.W. 487; Malmstad v. McHenry Teleph. Co. 29 N.D. 21, 149 N.W. 690.
Action to recover the purchase price of three cars of potatoes alleged to have been sold and delivered by plaintiff to defendant at Gardner, this state, in the month of November, 1913. The facts are fairly stated by appellant's counsel and are substantially as follows:
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