American Manufacturing Company v. Klarquist

• Decision Date: 16 November 1891
• Citation: 50 N.W. 243,47 Minn. 344
• Parties: American Manufacturing Company v. J. P. Klarquist and another
• Court: Minnesota Supreme Court

50 N.W. 243

47 Minn. 344

American Manufacturing Company v. J. P. Klarquist and another

Supreme Court of Minnesota

November 16, 1891

Appeal by defendants from an order of the district court for Hennepin county, refusing a new trial after a trial before Hooker, J., and verdict of $ 724.18 directed for plaintiff.

Order refusing a new trial affirmed.

Christensen & Tuttle, for appellants.

S. P Crosby, for respondent.

OPINION

Dickinson, J.

This action is for the recovery of an unpaid part of the price of personal property -- an engine and elevator -- claimed to have been furnished by the plaintiff to the defendants upon their written order, which is relied on as a contract of the defendants, excluding proof of prior oral agreements. This instrument is as follows:

"Minneapolis Minn., Apr. 8th, 1890.

"$ 740.00.

"American Manufacturing Co., St. Paul, Minn.:

"Please send and set up at 4th St. and 1st Ave. So. Minneapolis, 1 7 H. P. engine and steam material elevator, complete, with wire rope for 100 feet of stories, including rope instead of pipe guides, for which we agree to pay seven hundred forty dollars, as follows, [terms of payment specified.] And it is hereby agreed by the undersigned that the American Manufacturing Co. do not relinquish their title to said goods until they are fully paid for, and, upon default of the undersigned in the performance of any of the terms of this agreement, the said American Manufacturing Co. may declare the whole amount agreed to be paid by this contract due and payable, and they or their agents may without process of law, take possession of and remove said goods, and collect reasonable charges for damages and expenses. It is also agreed that the undersigned may retain possession of and use said goods until he shall make default in the terms of this agreement. The undersigned also agrees to pay freight.

"J. P. Klarquist & Bro.

"This contract subject to approval of American Manufacturing Co."

In view of the manner in which the answer meets the allegations of the complaint as to the written contract, and of the nature of the objection interposed when this instrument was offered in evidence, the defendants are to be deemed to have admitted the execution of it by them, or at least to have waived any objection as to the insufficiency of proof of its execution. The answer admits that the parties entered into an agreement and that it was attempted to be put in writing by the plaintiff, and that they signed the paper prepared by the plaintiff, but alleges that the pretended written contract does not embrace the whole agreement. And when the plaintiff offered "the written contract" in evidence, the only objection interposed was that of variance from the allegations of the complaint. The evidence showed that the plaintiff sent the engine and elevator after the execution of this instrument, which is also admitted by the answer, and that the plaintiff...