Billings v. Filley

• Decision Date: 30 March 1887
• Citation: 21 Neb. 511,32 N.W. 567
• Parties: BILLINGS v. FILLEY.
• Court: Nebraska Supreme Court

21 Neb. 511

32 N.W. 567

BILLINGS

v.FILLEY.

Supreme Court of Nebraska.

March 30, 1887.

Syllabus by the Court.

One B. sold 42 head fat steers and 104 fat hogs to F., at an agreed price per hundred pounds. The stock was weighed on the scales of F., and delivered, and on thesucceeding day it was discovered that the scales were incorrect. In an action by B. against F. to recover the difference between the weight of the stock given and the actual weight, held, that a preponderance of the evidence showed that the scales of F. were incorrect, and that B. had thereby sustained damages.

Where a party sold stock to be paid for by weight, and said stock was weighed on the scales of the buyer, which on the next day were found to have been out of order, and to have favored the buyer, held, that the seller was entitled to have the stock weighed correctly, and that a promise by him to pay the buyer a bonus to weigh the stock correctly was without consideration.

Where one F. purchased 42 fat steers, which were delivered and accepted by him, and on the succeeding day, at the request of the seller, reweighed 41 of said steers, but refused to accept the forty-second, but retained possession of said steer and afterwards disposed of the same, held, a ratification of the original contract, and the purchaser was liable to the seller for the purchase price agreed upon.

Instructions not excepted to cannot be reviewed in the supreme court.

Error to district court, Gage county.

A. Hardy, for plaintiff in error.

Hazlett & Bates and L. W. Colby, for defendant in error.

MAXWELL, C. J.

The plaintiff filed his petition in the court below, stating his cause of action to be --

“That on the eleventh day of March, 1884, the parties to this action entered into a written agreement, whereby plaintiff sold defendant forty-two head of steers at $5.35 per hundred pounds,--from the weight there was to be taken three per cent. for shrinkage, and no more,--and one hundred hogs at six cents per pound, said stock to be delivered at Filley, Gage county, Nebraska, from May 1st to 15th, and correctly weighed and paid for, on which defendant advanced to plaintiff $1,000, [said contract is attached to petition, marked Exhibit A;] that all of said stock was delivered April 21, 1884, and received and weighed on Filley's scales; that defendant's scales on which he weighed said stock were grossly incorrect and wrong, and did not give the true weights of said stock within at least twenty-five per cent., making the weights that much too low; that said forty-two steers were falsely and fraudulently weighed, so that their combined weights, as given by defendant, only aggregated 48,645 pounds, when in fact they weighed twenty-five per cent. more, and not less that 60,806 pounds, of which fact plaintiff was wholly ignorent, and that, after shrinking the three per cent., defendant only allowed plaintiff for 47,185 65-100 pounds, and paid plaintiff only $2,424.45 for said steers, whereas he should have been allowed and paid $3,155.52 therefor; that plaintiff was thereby wronged, cheated, and defrauded to the amount of $731.09; that said one hundred hogs were then by defendant falsely and fraudulently weighed upon said scales, so that their combined weight only aggregated 14,335 pounds; that the hogs honestly weighed at least twenty-five per cent. more, and not less than 17,918 pounds, of which fact plaintiff was then ignorant; that said Filley only allowed and paid plaintiff on account of said hogs $860.10, whereas he should have allowed him and paid therefor $1,075.10, whereby plaintiff was further wronged, cheated, and defrauded to the amount of $215.

Fourth paragraph. And for a further cause of action plaintiff alleges that during and immediately after the weighing of said stock, plaintiff was satisfied in his own mind that the scales upon which the stock was weighed were wrong, and the weights given fraudulent and unjust to him; that plaintiff then sold defendant nineteen more hogs to be weighed at Filley, and one other hog for $20, all of which were delivered at Filley, April 22, 1884; that while weighing said last hogs plaintiff discovered that said scales were grossly inaccurate and unjust; that said hogs weighed several hundred pounds less on the end of the scales where they stood while being weighed than on the other end, and not enough by several hundred pounds on either end, and that he had been grossly cheated and defrauded in weighing said stock the day before; and thereupon plaintiff insisted and demanded that said Filley again weigh all of the stock he had received of plaintiff under said contract, which said Filley refused to do, until he had first extorted from the plaintiff an agreement to pay said Filley $25 for weighing the said stock, and to allow Filley to shrink said steers one more per cent., said Filley then having all of said stock in his possession, to which proposition the plaintiff, by force of circumstances, was compelled to do, and did agree to upon express conditions that said Filley should correctly weigh all of said stock, and make right the wrong already done plaintiff, which Filley agreed to do; that then Filley weighed forty-one head of said steers on another pair of scales of insufficient capacity and wholly unfit for that purpose, and that the steers while being weighed rested much of their weight off said scales, and on the frame surrounding them, and said frame rested wholly upon the ground, and bore up and supported much of the weight of said steers, so that their full and true weight could not be--was not--given, yet the forty-one steers weighed fifteen pounds more than forty-two did the day before on said cattle scales; that said Filley then refused to weigh the other or forty-second steer that he had weighed and accepted the day before, but has ever since kept and now has said steer, which Filley claimed weighed 1,050 pounds, and absolutely refused to go on and weigh said one hundred hogs, or any part thereof, and broke and ended the contract by which he was to reweigh all of said stock. Yet, having the said stock and the whole business in his hands, said Filley wrongfully kept and retained out of purchase price of the last hogs the said sum of $25, so by him exacted for reweighing all of said stock, and kept and retained the further sum of $32.50, as a further shrinkage of said steers, one additional per cent., making in all $57.50, so by said Filley, of Filley, Neb., wrongfully kept and retained out of moneys justly due and belonging to the plaintiff, whereby plaintiff has been further wrongfully cheated and defrauded by said defendant in the further sum of $57.50. Plaintiff asks judgment for $1,005.50.”

The plaintiff's Exhibit A is as follows:

“FILLEY, NEB., March 11, 1884.

Received of Elijah Filley $1,000, as part pay on forty-two head of fat steers that I am now feeding, and which I am to feed from the first to the fifteenth of May next; said cattle to be driven from feed lot on day of delivery, and stand one hour, and then weighed at Filley, and shrunk three per cent., for which Filley agrees to pay $5.25 per hundred pounds. Also one hundred head of choice hogs I am now feeding,--now with the cattle,--which I am to deliver at the town of Filley; for which I am to have six cents per pound, to be delivered from first to fifteenth of May. Should Filley advance any more money, Billings to pay ten per cent. for it.

+--------------------------------------+
                ¦[Signed]¦WILBURN his X mark. BILLINGS.¦
                +--------------------------------------+
                

ELIJAH FILLEY.”

The defendant in his answer admits the making of the contract, and alleges that in pursuance thereof 42 head of steers and 104 hogs were delivered by the plaintiff to defendant, and that he has paid plaintiff for the same in full. The reply is a general denial of new matter. On the trial of the cause a verdict and judgment were rendered in favor of the defendant.

The plaintiff testified: “April 22d, defendant wanted the stock delivered next day. I delivered next day forty-two steers and one hundred hogs. Filley weighed the stock. I could not read the writing. I was dissatisfied with the weight of the steers. There was a plank off the side as high as a steer's head. Alva Lamb stood there. When he punched the steers back to the other end of the scales I saw the beam run up. I said, ‘Filley, your scales are not right.’ He said, ‘Oh, it is the wind.’ I said, ‘The wind don't make two or three thousand pounds difference in the scales.’ Every time the cattle crowded to the south side of the scales the beam would go up. I remarked this several times to him. He said he knew they were right, because he sold on them. I told him, ‘They are not right, and I think you know it.’ Weighed a bull after steers. I knew scales were not right from weight of bull, but could not get Filley to examine them. He stuck to it that they were right, and that I was not a judge of scales. We then weighed the hogs. That evening I sold Filley twenty other fat hogs,--nineteen at five cents per pound, and one for $20,--and took them up next day. Alva Lamb, Miller, and Bill Grady were with me. Filley was not there when we got there. His weigher, Baughman, weighed first eleven hogs, then drove on the other eight. He weighed them. I asked him to weigh them on south end of scales. There they weighed two hundred and fifty-five pounds more than on north end. This was on same scales the cattle and hogs were weighed the day before. Mr. Filley then came down. I told him there was something wrong with his scales, and was yesterday, and ‘now am going to convince you.’ He said something had got between the sill and the frame, and the scales were all right. I said, ‘Let us find what it is.’ He went to one end of frame, and sawed between frame and a piece of studding that had worked against it. Got that off clean. He then weighed the hogs on one end, and then on the other end of the scales, and they weighed...