Canadian Fish Co. v. Mcshane

• Decision Date: 09 January 1908
• Docket Number: 15,048
• Citation: 114 N.W. 594,80 Neb. 551
• Parties: CANADIAN FISH COMPANY, APPELLEE, v. WILLIAM H. MCSHANE, APPELLANT
• Court: Nebraska Supreme Court

114 N.W. 594

80 Neb. 551

CANADIAN FISH COMPANY, APPELLEE, v. WILLIAM H. MCSHANE, APPELLANT

No. 15,048

Supreme Court of Nebraska

January 9, 1908

APPEAL from the district court for Lancaster county: ALBERT J CORNISH, JUDGE. Affirmed.

AFFIRMED.

T. F A. Williams, for appellant.

Tibbets & Anderson, contra.

CALKINS C. FAWCETT and AMES, CC., concur.

OPINION

CALKINS, C. J.

The plaintiff was a dealer in fish at Minneapolis, and the defendant a commission merchant in Lincoln. In February, 1902, the plaintiff's manager, being in Lincoln, made an oral agreement with defendant to handle frozen fish. It is agreed that the fish were to be invoiced at certain stipulated prices; but the defendant insists that they were to be consigned to him upon commission, he to have the difference between the invoice price and the amount for which he should sell the same. The plaintiff contends that the defendant agreed to purchase the same outright, and that it gave to him the privilege of returning any excess of stock he might have on hand at the close of the season. The plaintiff made two shipments of frozen fish, one February 18, and the other on March 3, of about 4,800 pounds, which amounted at the invoice price to the sum of $ 276.09. For some time prior to June 5 the plaintiff had been pressing the defendant for a remittance; and on the latter date the defendant wrote a letter in the words and figures following: "Lincoln, Neb. 6-5-02. Canadian Fish Co., Minneapolis, Minn. Gentlemen: Inclosed find my check for $ 54.47 to cover consignment of fish from you of Feb. 18th and March 3d, as per account sales. This did not prove to be a good investment for either you or myself, as you will notice. I did not get near enough to pay for my freezer, which I had to build for this deal, to say nothing of the expense of handling the goods. In the first place you sent me too much fish the first time, so we could not possibly get rid of it before the fresh stock came on the market and killed the frozen fish trade. The second lot you sent was in bad shape when it arrived, as I told you once before, or we might have gotten rid of more of the trout. At the last, I consigned a good many shipments to get all I possibly could out of them, and in most all of the cases I was out the express charges both ways, as the parties would send them back. I am sorry to be compelled to send in any such report, but will simply state that I did the very best I could with the goods. Kindly acknowledge receipt of the check at once to cover and oblige. Yours truly, W. H. McShane." The account of sales which was inclosed in this letter showed the sale of about 1,084 pounds of fish, amounting to $ 90.75, from which was deducted for commission and freight the sum of $ 36.28, leaving a remainder of $ 54.47. For the latter amount a check was inclosed, which was described as "Check to balance in full." The check was received by plaintiff's bookkeeper, credited to defendant's account, and plaintiff's manager on June 9 wrote, protesting that the fish had been sold outright, and refusing to admit the defendant's construction of the contract. The defendant not replying to this letter, the plaintiff brought this action in the county court, from which it was taken to the district court, where, a jury being waived, it was tried to the court, who found for the plaintiff generally. From a judgment rendered on this finding for the full amount claimed, the defendant appeals.

1. There was a sharp conflict between the testimony of the plaintiff's manager and the defendant, as to whether the goods shipped were sold to the defendant or consigned to him to be sold upon commission. In the letters of the plaintiff's manager there occur certain expressions which are claimed to corroborate the defendant's theory of the transaction. On the other hand, the defendant's letters in some respects are consistent with the contract as claimed by the plaintiff. But there is nothing in the correspondence which can fairly be said to settle this dispute. After a careful reading of the evidence, we cannot say that the evidence is not sufficient to sustain the findings of the court, and therefore we conclude that his...