Edwards & Mcculloch Lumber Co. v. Baker

• Decision Date: 07 December 1891
• Citation: 50 N.W. 718,2 N.D. 289
• Court: North Dakota Supreme Court
• Parties: Edwards & McCulloch Lumber Co. v. Baker.

2 N.D. 289

50 N.W. 718

Edwards & McCulloch Lumber Co.

v.Baker.

Supreme Court of North Dakota.

Dec. 7, 1891.

Syllabus by the Court.

1. Where, upon trial, the plaintiff proved that it had delivered to defendant an invoice of lumber, to recover the balance of the purchase price of which the action was brought, held proper for defendant to prove that he never consciously accepted the paper as containing the contract between the parties, and that he never examined it or knew its contents, there being evidence to show that the price was agreed upon before the delivery of the paper, and that defendant had no reason to believe that the paper embodied any contract or part of a contract. Therefore held error to refuse to submit to the jury the question whether the price agreed upon was different from that which appeared upon the face of the invoice. Held, further, that defendant was not, as a matter of law, bound by the price stated in the invoice, on reading the same after receipt by him of the lumber; nor was he concluded from showing that an account received and retained by him without objection, in which the price was set down according to the invoice, was erroneous because it incorrectly stated the contract price of the lumber. The action not being upon the account stated, but merely to recover the balance of the alleged purchase price of the lumber, held, that defendant could show this error without specially pleading it.

2. An order made after statutory time has expired, settling a statement or bill, operates to extend the time for such settlement to the date thereof.

3. On appeal from a judgment, this court will review errors of law occurring at the trial, whether a motion for a new trial was or was not made in the court below.

Appeal from district court, Richland county; W. S. Lauder, Judge.

Action by Edwards & McCulloch Lumber Company against I. P. Baker to recover for lumber sold. Verdict and judgment for plaintiff. Defendant appeals. Reversed.W. E. Purcell, for appellant. McCumber & Bogart, for respondent.

Corliss, C. J.

The trial court having directed a verdict for plaintiff, the defendant appeals. The litigation grows out of the sale of lumber by the plaintiff to defendant. The defense was that the contract price therefor was $450, and that all but 48 cents of this had been paid before suit was brought, and defendant tendered in his answer judgment for this amount, with costs up to that time. Plaintiff's contention upon the trial was that defendant was precluded from showing any oral agreement as to the price, because the parties had entered into a written contract on the subject. The plaintiff did business in Fergus Falls, Minn., and shipped this lumber from that point to De Villo, N. D., where defendant was to construct a barn with it. Plaintiff's position is that the alleged written contract showed upon its face the price of the lumber at Fergus Falls, and that defendant was to pay freight thereon from Fergus Falls to De Villo. Upon this theory of the case, the amount for which the court directed a verdict was correct. But the defendant had a right to have his version of the contract submitted to the jury for their decision, unless it had the effect to contradict the terms of a written contract between the parties. He offered to prove that before the delivery of this alleged written agreement the plaintiff had agreed to deliver this lumber for $450 at De Villo, it to pay all freights. We think the trial court should have received the evidence, and left the question as to the terms of the contract to the jury. The defendant testified that he did not read the paper; that nothing was said about its being a contract when it was handed to him; that he put it in his pocket without looking at it, as he supposed that it was the bill of lumber that he had given one of the plaintiffs to figure from. At the time of the delivery of this paper to defendant the bargain, according to his statement, had been closed. There was therefore no particular reason why he should expect a written contract to be drawn. He says that he did not go there to make a written contract, and that he received no intimation from the plaintiff that this paper embodied any agreement concerning the lumber he had purchased. This is not the case of an attempt to controvert the terms of a written contract. The defendant insists that he had never entered into any written contract at all in relation to the matter. He was not asked to sign the paper, and if he was not aware that the plaintiff regarded the paper as the written contract between it and him, and if he did not so regard it himself, but thought it was merely the bill of lumber he had before handed to one of the plaintiffs, we are at a loss to ascertain on what principle he can be held bound by its terms, so long as they were unknown to him. Authorities would hardly seem to be necessary in support of a principle so obvious. Indeed, the cases go much further than we are called upon to go in this case. Strohn v. Railroad Co., 21 Wis. 562;King v. Woodbridge, 34 Vt. 565; 2 Whart. Ev. § 927; 4 Lawson, Rights, Rem. & Pr. § 1853; ...