Backes v. Schlick

• Decision Date: 16 September 1908
• Docket Number: 15,184
• Citation: 117 N.W. 707,82 Neb. 289
• Parties: HENRY J. BACKES, APPELLANT, v. FRANK H. SCHLICK, APPELLEE
• Court: Nebraska Supreme Court

117 N.W. 707

82 Neb. 289

HENRY J. BACKES, APPELLANT, v. FRANK H. SCHLICK, APPELLEE

No. 15,184

Supreme Court of Nebraska

September 16, 1908

APPEAL from the district court for Platte county: JAMES G. REEDER JUDGE. Affirmed.

AFFIRMED.

A. M Post and R. P. Drake, for appellant.

John J Sullivan and Louis Lightner, contra.

OPINION

DUFFIE, C.

December 10, 1904, the defendant, Schlick, agreed in writing to purchase from the plaintiff certain fruit trees, for which he agreed to pay $ 135 upon delivery of the same at Humphrey, Nebraska, on April 9, 1905. The agreement contains the following provisions: "I hereby agree to come or send for the goods purchased on the day set for delivery. * * * Parties not calling for them on that day will be charged livery hire and other expenses for delivering at their premises the following day." The plaintiff's petition sets out the contract; the failure of the defendant to call for the goods at Humphrey; and that upon such failure plaintiff, in compliance with the contract, delivered the goods to the defendant at his place of residence at an expense of $ 3. The petition further alleges that plaintiff has complied with each and all of the terms of said contract, but that defendant has refused to pay for the goods or any part thereof, and that there is now due the plaintiff the sum of $ 138, with interest from April 9, 1905, the date of delivery, for which judgment is demanded.

In his answer the defendant admits the making of the contract, and that he was notified of the time and place of the delivery of the goods, and denied the further allegations of the petition. Further answering, he states: "That, within a few days after he gave the order or contract, he found that on account of a change of circumstances he could not use the goods, and thereupon, on the 12th of December, 1904, he so notified plaintiff and countermanded said order or contract, and again on March 2, 1905, he notified plaintiff that he would not accept or receive the goods, but plaintiff, regardless of said countermand and notification and of defendant's express refusal to take and pay for said goods, drove with them to the farm where defendant was boarding, and, in the absence of defendant, or of any one acting on his behalf, left said goods at the farm; that thereafter plaintiff drove to where defendant was working and informed him of what he had done, and defendant then refused to accept, receive or pay for said goods, and the owner of the farm where said goods were left also informed plaintiff that he should not leave said goods on said farm, and that he would not be responsible for them; that plaintiff, nevertheless, left them there, but defendant at no time accepted them nor exercised any act of ownership over them." He admits that the expense of hauling them to the farm where left was $ 3, admits that he did not call for or receive the goods at Humphrey, or elsewhere, and that he has not paid anything for or on account of them. He further alleges that at the time he countermanded his order or contract the nursery trees had not yet been selected or set apart as the property to be delivered to him under the contract, but were then standing and growing in plaintiff's nursery, an unidentified part of a great mass of like trees in plaintiff's possession and ownership.

A demurrer to this answer was overruled by the court, whereupon the plaintiff filed a reply, denying the facts set out in the answer by way of defense. The record recites that a stipulation of facts was filed by the parties, and the case submitted to the court for its decision. The court entered judgment dismissing plaintiff's petition and taxing him with the costs. From this judgment he has appealed.

No bill of exceptions was allowed and signed by the judge trying the case, and, while the record contains a paper designated "Stipulation," we cannot consider the facts therein recited, in the absence of the certificate of the trial court, that it sets forth the evidence upon which the case was tried and determined. "A written stipulation of facts or mode of proof filed in a cause forms no part of the record, unless made so by a bill of exceptions." State Ins. Co. v. Buckstaff Bros. Mfg. Co., 47...