Ames & Frost Co. v. Smith

• Decision Date: 26 June 1896
• Docket Number: Nos. 9939 - (198).,s. 9939 - (198).
• Citation: 65 Minn. 304
• Parties: AMES & FROST COMPANY v. ERNEST F. SMITH and Another.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

65 Minn. 304

AMES & FROST COMPANY v. ERNEST F. SMITH and Another.¹

Nos. 9939 - (198).

Supreme Court of Minnesota.

June 26, 1896.

Appeal by defendants from a judgment of the district court for Hennepin county, in favor of plaintiff for $1,003.38, entered in pursuance of the findings and order of Russell, J. Affirmed.

Henry M. Farnam, for appellants

Haynes & Chase and Bangs, Wood & Bangs, for respondent.

START, C. J.

The complaint in this case stated two causes of action; one upon a promissory note, the other for a balance alleged to be due on account. The latter was adjusted on the trial.

As to the note, the complaint alleged that the defendants, at the time stated, made and delivered to the plaintiff their promissory note, and thereby promised to pay to the order of the plaintiff $500 in four months, with interest. The answer admitted the making and delivery of the note, but as to whether the plaintiff was, at the commencement of the action, the owner of the note, the defendants had no knowledge or information sufficient to form a belief. As a counterclaim the answer alleged that the parties hereto entered into a contract in writing, whereby the plaintiff agreed to sell and the defendants to buy 200 bicycles, at an agreed price for each, for the trade of the defendants during the then coming season; that the plaintiff refused to perform its part of the contract, whereby the defendants were damaged in the sum of $2,500. The making of the contract was denied by the reply. The trial court found for the plaintiff the amount claimed in the complaint, but did not make any finding as to the contract set up in the defendants' answer. The defendants then moved the court to make additional findings to the effect that the contract alleged in the answer was made, that there was a breach thereof, and that the defendants sustained damages as claimed; which were refused. The defendants appeal from the judgment.

There are 23 assignments of error, but they are properly classified by counsel as relating to the ownership of the note, the existence of the contract, and the defendants' damages for a breach thereof.

1. The plaintiff on the trial produced and offered the note in evidence, which appeared to have been indorsed in blank by the payee. The plaintiff also unnecessarily offered oral evidence tending to show that it was the owner of the note. The point is made that the plaintiff was not shown to have been the owner of the note, for the reason that the oral evidence was incompetent. It is of no consequence whether the oral evidence was competent or not, for there was no issue as to the ownership of the note under the pleadings; and, further, if there had been, the production of the note on the trial, indorsed in blank by the payee, was sufficient proof of plaintiff's ownership. The rule is that a bill or note payable to bearer or indorsed in blank by the payee may be transferred, like currency, by delivery, and possession is prima facie evidence of ownership. Randolph, Com. Paper, §§ 777, 1645.

2. The defendants did not move the trial court to make additional findings as to the issues tendered by the counterclaim in their answer. Their motion was, as we have suggested, that the court find that the contract alleged in the answer was made by the parties hereto; therefore the denial of the motion was tantamount to a decision that the supposed contract was never made. Hence the question here is not whether there was evidence in the case which would have justified a finding that such a contract was made, but whether the evidence required such a finding as a matter of law. The evidence relied on by defendants to establish the contract consists of the correspondence between the parties, containing propositions, and qualified acceptances thereof. To establish a contract for the sale of property by the correspondence of the parties it must appear that there was a clear accession on both sides to one and the same set of terms. An offer to sell does not become a contract unless unconditionally accepted upon the exact terms of the offer. The acceptance must be unqualified without the suggestion of any new terms. Lanz v. McLaughlin, 14 Minn. 55, (72); Hamlin v. Wistar, 31 Minn. 418, 18 N. W. 145; Langellier v. Schaefer, 36 Minn. 361, 31 N. W. 690. Tested by this rule, it is reasonably clear that the correspondence fails to establish the contract alleged in the answer, for it appears that in one material particular at...