Frontier Supply Co. v. Loveland

• Decision Date: 02 February 1907
• Parties: FRONTIER SUPPLY CO. v. LOVELAND ET AL
• Court: Wyoming Supreme Court

88 P. 651

15 Wyo. 313

FRONTIER SUPPLY CO. v. LOVELAND ET AL

Supreme Court of Wyoming

February 2, 1907

ERROR to the District Court, Uinta County, HON. DAVID H. CRAIG Judge.

Theodore O. Loveland and James L. Records, co-partners, doing business as the Equitable Manufacturing Company, brought this action against the Frontier Supply Company, a corporation. Judgment was rendered for the plaintiffs, and defendants brought error. The material facts are stated in the opinion.

Affirmed.

Hamm &amp Arnold, for plaintiff in error.

The exhibit attached to the petition showing a written contract between the parties, the action cannot be maintained upon an account, and the objection was properly raised by demurrer. (O'Brien v. Chicago Co., 64 Iowa 411.) A statement in a petition that the defendant "is indebted," etc., is not equivalent to alleging that "there is due," etc., as required by statute. (1 Ency. Pl. & Pr., 92; Fairchild v. King, 102 Cal 320.) Nor is an allegation that "defendant has not paid the same" a declaration that it has not been paid and is still due. The petition is fatally defective also in not alleging the performance of the condition precedent. (Pope v. Car Co., 107 N.Y. 61; 4 Ency. Pl. & Pr., 661; Sasenguth v. Rantoul, 48 Wis. 334.) Proof of the performance of the condition was therefore inadmissible.

J. H. Ryckman, for defendant in error.

The only issue upon the pleadings is whether the goods had been ordered and delivered. The evidence clearly answers that issue in the affirmative. The notation as to date of shipment and notice was a mere collateral stipulation and not a condition precedent. (Redman v. Ins. Co., 49 Wis. 438; 2 Pars. Contracts (7th Ed.), 657; Foundry, &c., v. Hovey, 21 Pick, 417; Hoffman v. King, 70 Wis. 382; Kellogg v. Nelson, 5 Wis. 125; Sawyer v. R. Co., 22 Wis. 403; Blackburn v. Reilly, 47 N.J.L. 290.) A breach of mere collateral stipulations is not ground for rescission. (24 Ency. L., 1108.) But notice was sent, and, therefore, the stipulation claimed to be a condition complied with. The defendant not having returned the goods could not rely upon a rescission. (30 Ency. L., 193; 24 id., 1110.) Delivery to the express company was a delivery to the defendant. (24 Ency. L., 1071, 643, 644.)

SCOTT, JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

SCOTT, JUSTICE.

This action was commenced by the defendants in error, a partnership (plaintiffs below), against the plaintiff in error, a corporation (defendant below), to recover upon an account for a bill of goods alleged to have been sold and delivered to the plaintiff in error upon its request. The case was tried without the intervention of a jury and the court found generally and entered judgment in favor of the defendant in error.

The petition had attached to and filed with it a printed and itemized bill, following which and on the same page is the order for the goods so itemized. The following endorsement in lead pencil appears on the margin of the itemized bill and order, viz.: "Ship Sept. 1, 1902. Notify this firm two weeks before." It is urged that the goods were shipped at the time stated in the notation; that they reached Frontier in due time; that plaintiff in error was notified by the express company by which they were shipped of their arrival; that plaintiff in error declined to take them out of the express company's office until upon notification that they would be sold to pay express charges and demurrage, when it paid such charges and took the goods to its store, where they have remained, and that the defendants in error were notified that the goods were held subject to their order.

It is assigned as error, first, that the judgment is not sustained by sufficient evidence; second, that the judgment is contrary to law in that the court erred in admitting testimony at variance with the petition in this, that evidence was admitted to prove the performance of a condition precedent of which there was no plea; third, that the petition does not state facts sufficient to constitute a cause of action.

These assignments of error are predicated upon plaintiff in error's theory as to the effect of the notation upon the margin of the order already set out and will be considered together.

The notice of the shipment contemplated to be given prior to the shipment must be considered and determined in connection with the situation of the parties. The plaintiffs were doing business at Iowa City, in the State of Iowa, while the defendant's place of business and where the goods were to be shipped was in the extreme western part of this state. We think that proof of notice as usually understood by merchants in their business transactions was sufficient either by showing actual knowledge, or by letter in due course of mail. The plaintiffs proved and it is not disputed that the general manager wrote, sealed, stamped and addressed a letter to the defendant at its place of business, viz.: Frontier, Wyo. and deposited the letter so written, sealed and addressed, and with postage prepaid, in the U.S. postoffice at Iowa City, Iowa. This we think was a sufficient compliance with the notation as to giving notice. It was the exercise of the ordinary method of doing so, which in the absence of other evidence must be taken as the method contemplated by the parties, and if the letter miscarried or did not reach its destination the fault was not with the party sending it. If notice was to be given in any other way it should have been so provided as one of the conditions of the sale, and properly plead and a breach thereof assigned. In the absence of proof that a notice so attempted to be given was never received, the presumption is that it reached the person or party to whom the letter was addressed. "The fixed methods and systematic operations of the government's postal service have been long conceded to be evidence of the due delivery to the addressee of mail matter placed for that purpose in the custody of the authorities. The conditions are that the mail matter shall appear to have conformed to the chief regulations of the service, namely, that it shall have been sufficiently prepaid in stamps, correctly addressed, and placed in the appropriate receptacle." (Sec. 95, Wigmore on Ev., and cases cited.) When there is evidence tending to show that the letter never reached the person addressed that fact...