Henningsen v. Tonopah & G.R. Co.

• Decision Date: 01 October 1910
• Docket Number: 1,823.
• Citation: 111 P. 36,33 Nev. 208
• Parties: HENNINGSEN v. TONOPAH & G. R. CO.
• Court: Nevada Supreme Court

111 P. 36

33 Nev. 208

HENNINGSEN v. TONOPAH & G. R. CO.

No. 1,823.

Supreme Court of Nevada

October 1, 1910

Appeal from District Court, Nye County; J. P. O'Brien, Judge.

Action by R. M. Henningsen against the Tonopah & Goldfield Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See 104 P. 223.

This action was brought to recover damages for failure to deliver all the ties designated in the following contract: "This agreement, made and entered into at Tonopah, Nevada, this 28th day of November, 1905, by and between the Tonopah & Goldfield Railroad Company, a Nevada corporation, party of the first part, and R. M. Henningsen, of Goldfield, Nevada party of the second part, witnesseth: The first party, as successor of the Tonopah Railroad Company, a corporation owning and operating a line of railroad from Mina, in Esmeralda county, to Tonopah, in Nye county, in the state of Nevada, is the owner of a quantity of narrow-gauge ties heretofore used by said Tonopah Railroad Company in the construction, maintenance, and operation of said line of railroad prior to standard-gauging the same; and whereas negotiations have been pending between the first and second parties with a view to selling said ties by the first party to the second party, upon certain terms and conditions: Now therefore, in consideration of the sum of one dollar, lawful money of the United States, paid to the first party by the second party, the receipt of which is hereby acknowledged and other good and valuable considerations, the parties hereto have promised, covenanted, and agreed, and do hereby promise, covenant, and agree, as follows: (1) The first party will sell to the second party, and the second party will purchase from the first party, all and singular the stock of narrow-gauge ties now owned by the first party, and distributed at various places along the line of the first party's railroad in Nye and Esmeralda counties, state of Nevada, at the rate of eighteen (18) cents per tie. (2) The first party will deliver said ties to the second party at the first party's depot in Tonopah, Nye county, Nevada, or at its depot in Goldfield, Esmeralda county, Nevada, as may be designated by the second party, said ties to be delivered in 5,000 lots or less, at any and all times as may be demanded by the second party: Provided, however, that the second party will deliver to A. Tripp, as general superintendent of said Tonopah & Goldfield Railroad Company, ten days' written notice of demand for delivery of said lot of ties. (3) Said ties shall be loaded upon the cars of the first party, and transported to Tonopah or Goldfield, at the expense of the first party. The second party shall unload said ties at the expense of the second party, and will pay for said ties at the rate of 18 cents per tie upon delivery thereof, the second party to unload said ties within twenty-four hours after their arrival at the destination designated: Provided, however, that the agent of the first party shall give to the second party the customary notice of arrival of freight. This agreement shall remain in force and effect until the first party has delivered to the second party all of the ties above mentioned. In witness whereof, the first party has hereunto set its corporate name, by its duly authorized agent, and the second party has affixed his signature, the day and year first above written. Tonopah & Goldfield Railroad Company, by Alonzo Tripp, Gen. Supt. R. M. Henningsen."

Under the direction of Tripp, this contract was drawn up in the offices of the attorneys for the railroad company. He had previously received bids on the ties, and had been offered 12 and 15 cents each, and had later succeeded in persuading Henningsen to make a written offer of 18 cents apiece, after he had bid 15 cents for them. Tripp testified that he was present at the meeting in Philadelphia when the agreement was made under which he was employed and sent to Tonopah to build and operate the railroad; that his reports were made to Brock, the president of the railroad company, and all his correspondence with reference to the business was with the Philadelphia office; that he informed Brock that the ties were being stolen and burned, and that it was best to get rid of them some way; that he thought it was determined in his conversation with Brock that they ought to get 20 cents a tie; that in his talk with Henningsen, about the time the contract was made with him, it was said that it would take about two years to work off all the ties and complete the contract; that he wrote Brock that he had made such a contract, soon after it was executed, and gave him the price of the ties; that the contract was shown to Brock when he came to Tonopah the winter after it had been signed; that Brock stated that no time limit was given within which the ties were to be delivered; that no objection to the sale of the ties was made to him by any director or officer of the company; that with instructions the contract was turned over to the auditor of the railroad company, and various sums of money paid on account of the purchase price of ties were deposited through the clerks; and that when bills collectible were made he signed them, and they then passed under the control of the auditor.

On behalf of Henningsen, who was the plaintiff in the action, and who is the respondent in this court, testimony was introduced that directly subsequent to the execution of the agreement he sought to make sales of these ties, and with this purpose in view applied to the superintendent of the Tonopah Mining Company, which owns the appellant railroad, or a controlling interest therein. The mining company had previously telephoned to the railroad company for ties, but had not sent any written requisition. Henningsen testified that thereafter he went to Tripp, the general superintendent of the railroad company, who told him there had been a little misunderstanding, that the Tonopah Mining Company had an order in previous to the signing of the contract, and that Henningsen and Tripp finally agreed that the ties that were taken to the mining company were to be delivered, and that Henningsen was to sell them to the mining company at 25 cents apiece, and that the railroad company, the appellant, settled at that price with him for these ties. At different times, for about six months or more, the railroad company made various deliveries to Henningsen under the contract of ties in lots of one or more car loads at Tonopah and Goldfield, and he made various payments after deliveries. Bills collectible for ties delivered under the contract were made up against him, signed by Tripp as general superintendent of the railroad, by the auditor, and by the chief clerk, and receipted by the assistant treasurer. These bills were on the company's printed forms, which contained the direction on the earlier ones that remittance be made to Alonzo Tripp, general superintendent, Tonopah, Nevada, and on the later ones to W. L. Cardin, assistant treasurer, at that place. One of these bills, bearing the signatures of the chief clerk and the auditor, approved by Alonzo Tripp as general superintendent, and receipted by the assistant treasurer, bears the words: "For ties delivered at Tonopah as per contract, 2,228 ties at 18 cents, $401.04." The charge on other bills for ties was at the contract price of 18 cents. The amounts on several of the bills are indorsed as having been credited to broad-gauging. Some of the payments made by Henningsen did not appear on these bills, nor on the company's books.

On June 1, 1906, J. F. Hedden succeeded Tripp as general superintendent of the railroad company and made further deliveries of ties under the contract as originally executed by Tripp. A voucher for four car loads of ties, dated as late as June 13, 1906, was approved by Hedden, and also signed by the auditor and receipted by the assistant treasurer of the company. On June 28, 1906, the following notice was served "To Tonopah & Goldfield R. R. Co.: You are hereby notified that there are now, at the date hereof, by actual verified count, one hundred one thousand four hundred (101,400) narrow-gauge R. R. ties distributed along the railroad right of way between Tonopah and Minn, all of which are covered by and included in that certain contract of sale and purchase made between you and the undersigned, of date the 28th day of November, 1905. Under and by virtue of the terms of said contract all of these ties are the property of the undersigned, and you are hereby expressly notified that you are required to deliver the same to the undersigned on demand in compliance with the terms of said contract. You are hereby further notified that since the execution of said contract you have, without notifying the undersigned, and without his consent, appropriated to your own use for construction purposes along the R. R. right of way, five thousand eight hundred eighty-two (5,882); and for the Midway Mill, Tonopah, one thousand and twenty-five (1,025) narrow-gauge ties, a total of six thousand nine hundred seven ties, all the property, on demand, of the undersigned, and for which bill is hereby rendered hereto attached. You are also further notified that, under the calculation made between you and the undersigned at the time of the execution of said contract, viz., Nov. 28, 1905, as to the number of ties passed thereby, there are missing and unaccounted for twenty thousand ties, which the undersigned will demand in due course of the fulfillment of such contract. This will also serve as further notice, in addition to that heretofore served upon you, that for all narrow-gauge ties obtained or received by or through you from and after June 21, 1906, you will be charged the net rate and...