Earl Fruit Company v. Thurston Cold-Storage & Warehouse Company

Decision Date27 February 1895
Docket Number9011
Citation62 N.W. 439,60 Minn. 351
CourtMinnesota Supreme Court

Appeal by plaintiff from an order of the district court for Ramsey county, Kerr, J., granting defendant's motion to set aside a verdict in favor of plaintiff for $ 1,011.43 and for a new trial. The facts are stated in the opinion. Affirmed.

Order affirmed.

Van Fossen, Frost & Brown, for appellant.

Flandrau Squires & Cutcheon, for respondent.



The complaint in this action was drawn upon the theory that as a matter of law, without regard to any custom concerning advances and expenses which might exist between factors or commission men, the plaintiff was entitled to recover of defendant the difference between what it had realized from a sale of the apples and the total amount it had advanced as the goods were shipped, its necessary expenses incurred for freight and in selling, and its stipulated commission per barrel, -- the alleged difference being quite a sum of money because of the unsound and worthless condition of the property. The answer alleged that the apples belonged to one Porter; that plaintiff was to handle and dispose of them on his account, not for defendant; and that the advances made were to Porter, payment being to defendant solely that it might pay for Porter an indebtedness incurred by him to certain banks for and on account of the apples, -- all of which was understood and agreed to by plaintiff, -- and that defendant so applied the amount received by it in liquidation of this indebtedness. The answer also put plaintiff on its proof as to the sum realized in disposing of the property. The reply made no other issues, and, as will have been seen there was nothing in the pleadings tending to show that either party relied upon any special custom existing between principal and factor as to repayment by the former in case advances made, freight and cartage charges, and other necessary expenses paid or incurred by the latter, exceeded the amount realized on sales.

But the plaintiff's counsel assumed on the trial that it was incumbent upon them to prove a general usage or custom in reference to the reimbursement by the principal in case of a deficit, and, by their first witness, attempted to show that there was a general, uniform, and well-recognized usage and custom with reference to the right, and which established the right, of a factor to recover from his principal the amount advanced on acceptances paid for freight and cartage, and for repacking goods requiring such repacking. Such testimony was objected to by defendant's counsel as incompetent, irrelevant, immaterial, and not pleaded, and the objection was sustained; whereupon counsel asked leave and were allowed to amend their compliant by alleging such usage and custom with reference to moneys necessarily expended by the factor for freight and cartage. No other amendment was asked or allowed, and hence the usage and custom as to repayment for...

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