Aultman, Miller & Co. v. Scheele

• Citation: 52 N.W. 817,34 Neb. 819
• Parties: AULTMAN, MILLER & CO. v. SCHEELE & FISHER
• Decision Date: 11 June 1892
• Court: Supreme Court of Nebraska

52 N.W. 817

34 Neb. 819

AULTMAN, MILLER & CO. v. SCHEELE & FISHER

Supreme Court of Nebraska

June 11, 1892

ERROR to the district court for Nemaha county. Tried below before BROADY, J.

REVERSED AND REMANDED.

W. H Kelligar, for plaintiff in error, cited: Holland v Griffith, 13 Neb. 472; Victor Sewing Mach. Co. v Day, Id., 408; Smith v. Evans, Id., 314; Sandwich Mfg. Co. v. Feary, 22 Id., 53; Fried v. Remington, 5 Id., 525.

G. W. Cornell, contra, cited: Newman v. Mueller, 16 Neb. 523; Dunbar v. Briggs, 18 Id., 94; Cooper v. Hall, 22 Id., 168; Colton v. Shaffer, 23 Id., 724; Bookwalter v. Lansing, Id., 292.

OPINION

MAXWELL, CH. J.

This action was brought to recover a balance on an account for binding twine. The whole account is $ 1,467.75, and the payments thereon $ 1,298.74, leaving a balance due the plaintiffs of $ 169.01, for which he prays judgment. The defendants in their answer admit "receiving 9,000 pounds of twine of plaintiff, valued at $ 1,205, and defendants further admit paying plaintiff the sum of $ 1,298.74, as itemized in plaintiffs' petition, and which now stands as a credit in favor of these defendants and against said plaintiff, and defendants aver that there is now due thereon from plaintiff to defendants the sum of $ 93.74 as balance due defendants, with interest thereon from April 1, 1889, at the rate of seven per cent per annum, as appears more fully by the account hereto attached. And for further defense to plaintiff's petition defendants deny each and every allegation therein not herein expressly admitted. Wherefore defendants pray judgment against said plaintiff in the sum of $ 93.74, with interest from April 1, 1889, at seven per cent per annum, and costs of suit." On the trial of the cause the jury returned a verdict in favor of the defendants for the sum of $ 103.56, and a motion for a new trial having been overruled, judgment was entered on the verdict. On the trial the parties entered into the following stipulation:

"Defendants admit that they received a car from plaintiff of the C. & C. M. R. R., No. 1132, billed to Wm. Mangan, at South Auburn. Plaintiff admits that if they sent the twine in dispute it was sent in that car. Defendants admit that if the twine was sent in that car and they got it, they owe for it.

"It is further agreed that if there is a verdict for the plaintiff it shall be for $ 169.01, with seven per cent interest from October 1, 1888. Plaintiffs agree if defendants succeed they shall have a verdict for $ 93.74, with interest at seven per cent from April, 1889."

It is proved beyond dispute that the twine was shipped in car 1132, billed to William Mangan at South Auburn, Neb. that the contents of the car were transferred to the defendants and that the seal had not been broken when they received the car. T. W. McCargar was the general agent of the plaintiffs at Council Bluffs, Iowa, and the defendants sent the following letter to him:

"AUBURN, June 6, 1888.

"T. W. McCargar--DEAR SIR: We note that you don't know about how an order was sent you about two weeks ago. We ordered 10,000 Manilla and 1,000 Sisal, and 2,000 we got in the car with binders. We want the order filled with Buckeye twine as you had taken the order when we made the contract. Fill the car with six foot binders, and bundle carriers send three. We hope this order will be filled at once, if not filled at this date. Our binders are all sold that are on hand.

"Yours truly, SCHEELE & FISHER."

The original letter is before us, together with a stipulation of the attorneys that the appearance of the paper at the word "June" is not to be considered. This stipulation no doubt was felt to be necessary by reason of the testimony of one of the defendants who seemed to be anxious to swear that the word "June" had been inserted in place of July. The change, however, seems to have existed alone in his imagination. He does testify, however, that the letter was written in July, but he is directly contradicted by his own letter of June 11, 1888, which is as follows:

"SOUTH AUBURN, NEB., June 11, 1888.

"T. W. McCargar, Council Bluffs, Iowa.--SIR: Yours of the 6th at hand. In answer will say, fill the car at Akron, Ohio, with twine and machines, as you advised us to have it done; but we got to have at least 9,000 Ibs. of Manilla and 1,000 Ibs. of Sisal, the 2,000 Ibs. of Sisal we got in this car must be outside of the order; that would make 3,000 Ibs. of Sisal, and that is all we can sell of that kind; they all want Manilla twine.

"Yours truly, SCHEELE & FISHER."

In addition to this it is clearly shown that if the defendants...