Beckman v. Birchard, Bridge & Co.

• Decision Date: 03 June 1896
• Docket Number: 6606
• Citation: 67 N.W. 784,48 Neb. 805
• Parties: HENRY BECKMAN v. BIRCHARD, BRIDGE & COMPANY
• Court: Nebraska Supreme Court

67 N.W. 784

48 Neb. 805

HENRY BECKMAN v. BIRCHARD, BRIDGE & COMPANY

No. 6606

Supreme Court of Nebraska

June 3, 1896

ERROR from the district court of Antelope county. Tried below before ALLEN, J.

AFFIRMED.

O. A Williams, for plaintiff in error.

Powers & Hays, contra.

OPINION

IRVINE, C. J.

Birchard Bridge & Co. sold to Henry Beckman certain wheat in the possession of the former at Norfolk, estimated at from eight to ten thousand bushels, at seventy-one and three-fourths cents per bushel, the wheat to be delivered on board cars at Norfolk, Beckman being engaged in the milling business at Neligh. This action was brought by Birchard, Bridge & Co. against Beckman to recover a portion of the purchase price. The controversy primarily relates to the amount of wheat delivered, Beckman claiming that he has paid in full for all delivered to him and Birchard, Bridge & Co. claiming that a greater amount was delivered than Beckman concedes. The trial resulted in a verdict for the plaintiffs for $ 265.30. The defendant brings the case here, contending for a reversal upon one ground only, to-wit, that the verdict was not sustained by the evidence.

The contract between the parties contained no provision whatever for ascertaining the amount of the grain. After six cars had been delivered, a controversy having arisen as to the amount of their contents, Mr. Birchard visited Mr. Beckman's agent at Neligh and had some negotiations in regard to the matter. The plaintiffs contend that no adjustment was made of the existing dispute, while the defendant contends that it was then agreed that the wheat already delivered should be paid for by defendant according to the result of his own weighing. On this point the evidence is conflicting. In order to avoid future disputes it was, however, then agreed that the amount of the remaining wheat should be determined by the weight given by the railroad company. This attempt to provide a certain basis for the remainder of the transaction was unfortunately frustrated by the fact that for three of the remaining cars the railroad company gave different weights. As to these cars the bill of lading in each instance gave a greater weight than that given by the freight bill delivered to Beckman. The plaintiffs then insisted that the weight was to be determined by that reported on the bill of lading, while the defendant insisted that the freight bill was to govern. The evidence was...