Dowagiac Manf. Co. v. Higinbotham

• Decision Date: 01 April 1902
• Citation: 91 N.W. 330,15 S.D. 547
• Parties: DOWAGIAC MANUFACTURING COMPANY, Plaintiff and appellant, v. WILLIAM HIGINBOTHAM, Defendant and respondent.
• Court: South Dakota Supreme Court

15 S.D. 547

91 N.W. 330

DOWAGIAC MANUFACTURING COMPANY, Plaintiff and appellant,

v.

WILLIAM HIGINBOTHAM, Defendant and respondent. South Dakota Supreme Court Appeal from Circuit Court, Turner County, SD Hon J. W. Jones, Judge Reversed Davis, Lyon & Gates, Sioux Falls, SD Attorneys for appellant. Alan Bogue, Jr., French & Orvis Attorneys for respondent. Opinion filed April 1, 1902

HANEY, P. J.

On October 25, 1898, the parties to this action entered into a contract whereby the plaintiff agreed to sell and the defendant agreed to buy certain farm machinery at an agreed price, to be delivered on board the cars at Dowagiac, Michigan, on or before February I, 1899. On January 10, 1899 defendant sent the plaintiff the following letter:

“I have canvassed among my customers on drills, and can only find one who wants a shoe drill. My customers do not think much of your disc drill; for it is made too light, and the hubs would not last a season. I have a sample shoe drill on hand, and I must ask you to cancel my order for the ten to be shipped February 1, and if my trade wants shoe drills later I can order from Sioux Falls. I must have what my trade wants, and as they want disc drills I want the best I can find”

—to which plaintiff replied, on January 11th, as follows:

“We are in receipt of your letter of the 10th stating that you have made a canvass and find but one customer who wants a shoe drill, and that your trade will run largely to disc drills. You further say that our disc hub is so light that it will not stand. We had some misgivings regarding a deal with you at the time we received your letter in reference to disc drill patents, etc., and are now satisfied that the difference in your disposition as between the time of making contract and of writing this letter is due to your having become interested in another make of drill than the ‘Dowagiac.’ We entered into the contract with you in good faith, and by so doing were enabled to make up a car load to that and adjacent points. Under the circumstances we do not feel warranted in cancelling your contract, but will let the car go forward immediately, as specified for. We instruct Mr. Porier to look after the trade there, and if you give our goods the representation which you have agreed to do by contract you will find nothing whatever the matter with the goods, either the shoe or disc drills”

—and on January 14th defendant wrote the plaintiff as follows:

“In reply to yours of the nth, I will refuse the drills if you ship them. I am short one truck wheel on the sample shoe drill, and if you send the wheel I will sell all I can and order from Sioux Falls. My customers do not want shoe drills, and will not take shoe drills.”

Notwithstanding...