Gaslin v. Pinney
| Decision Date | 13 December 1877 |
| Parties | William H. Gaslin v. Ovid Pinney and another |
| Court | Minnesota Supreme Court |
Appeal by defendants from an order of the district court for Hennepin county, Young, J., presiding, denying a motion for a new trial.
Order affirmed.
J Guilford, for appellants.
Lochren McNair & Gilfillan, for respondent.
Action upon certain drafts of defendants drawn by their agent William Brockway, upon the defendant.
The authority of the agent to draw the firm's draft upon Pinney, within the limits prescribed by the defendants' articles of partnership, was affirmed by this court when this case was before it at the April term, 1876. [Gaslin v. Pinney, 23 Minn. 26.] Of the defences originally pleaded one was that the drafts were given without consideration, and this is the only one under which any question was raised here. The alleged consideration was a contract by plaintiff to sell to defendants a certain quantity of logs, and on the trial, as stated in the settled case, "defendants were allowed to amend their answer and allege recoupment, so as to offset or recoup the amount of the proceeds of such logs as were not received by the defendants under the contract with plaintiff, but which, as defendants claim, were afterwards disposed of by the plaintiff."
The testimony shows that there was an oral agreement made in May 1875, by defendants, through their agent and the plaintiff, for the sale by plaintiff to them, at the rate of $ 8.25 per thousand feet, of a large quantity of logs of certain marks, the quantity of which appears from a written order, given by plaintiff to defendants, to the scaler, upon whom the parties had agreed, to have been one million feet. This quantity was to be selected by defendants out of nine million feet of logs of the designated marks, owned or claimed by the plaintiff, as the logs should from time to time float in the river to a point above the defendants' mill. They were to be scaled in their boom by George Barber. No part of the price for the logs was paid, nor of the logs delivered at the time of making the agreement. There was evidence tending to show, and the jury in a special verdict found the fact to be, that within about a month afterwards the defendants received into their boom ninety thousand feet. This took the agreement out of the statute of frauds. Sprague v. Blake, 20 Wend. 61; McKnight v. Dunlop , 5 N.Y. 537;...
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