Carter, Rice & Co. v. Cream of Wheat

• Decision Date: 14 July 1898
• Citation: 76 N.W. 55,73 Minn. 315
• Parties: CARTER, RICE & CO. v CREAM OF WHEAT CO.
• Court: Minnesota Supreme Court

73 Minn. 315

76 N.W. 55

CARTER, RICE & CO.vCREAM OF WHEAT CO.

Supreme Court of Minnesota.

July 14, 1898.

(Syllabus by the Court.)

1. Held, that plaintiff did not part with its title to the personal property in question here, although it gave possession thereof to a proposed vendee in supposed compliance with the terms of a contract of sale; and, also, that said vendee had not waived its right to insist upon compliance on the vendor's part with certain conditions of the contract as to the character or quality of the property.

2. Held, further, under the rule laid down in Fishback v. Van Duzen, 22 N. W. 244, 33 Minn. 111, that even if the vendor's part of the contract, as to the character or quality of the property, had been complied with, such vendor had the right to reclaim the same when this action was brought.

Appeal from district court, Hennepin county; William A. Lancaster, Judge.

Action by Carter, Rice & Co., a corporation, against the Cream of Wheat Company. Judgment was ordered for plaintiff, a new trial was denied, and defendant appeals. Affirmed.

Rome G. Brown and Charles S. Albert, for appellant.

Keith, Evans, Thompson & Fairchild, for respondent.

COLLINS, J.

Action in claim and delivery; the plaintiff being a Massachusetts corporation, with its office in Boston. It was the owner of a “Babcock Optimus” printing press; and in November, 1896, the North Dakota Milling Company, a corporation doing business at Grand Forks, N. D., opened a correspondence looking towards a purchase thereof. Letters and telegrams were exchanged, and on November 17th the milling company accepted a proposition made by plaintiff, and directed that the press be shipped at once to Grand Forks. According to the terms of the contract, as found in the correspondence, the press was to be the Optimus, latest series or make, with two revolutions. The price was to be $1,600; one-fourth to be paid in cash, and the balance in monthly or quarterly payments, with interest-bearing notes. When the press reached the milling company, and was set up, it was discovered that it was not one of the latest series or make, but was of an older style; and the company declined to accept it, or to pay as agreed upon. After investigating the matter, the plaintiff's president, who had acted in good faith when making the sale, and in the belief that the press was of the latest make, offered to discount $150 or $200 from the agreed price if the milling company would keep it; but this offer does not seem to have received any consideration, and from the evidence it conclusively appears that in no manner was it accepted. Several letters were written by the plaintiff, and evasively answered by the milling company, prior to April 12, 1897, when the latter made an assignment for the benefit of its creditors. The assignee took possession of the press, sold and delivered it to one Daniels, and he leased and delivered it to defendant, a Minnesota corporation. On findings of fact made by the court, trying the case without a jury, a judgment was ordered in plaintiff's favor.

The order denying defendant's motion for a new trial must be affirmed. The plaintiff agreed to furnish,...