Herring-Hall-Marvin Safe Co. v. Balliet
| Decision Date | 02 January 1915 |
| Docket Number | 1900. |
| Parties | HERRING-HALL-MARVIN SAFE CO. v. BALLIET. |
| Court | Nevada Supreme Court |
Appeal from District Court, Nye County; Mark R. Averill, Judge.
Action by the Herring-Hall-Marvin Safe Company against Letson Balliet. Judgment for defendant, and plaintiff appeals. Affirmed.
McIntosh & Cooke, of Tonopah, for appellant.
P. M Bowler, of Tonopah, for respondent.
This is an action brought by Herring-Hall-Marvin Safe Company, a corporation, against Letson Balliet, to recover the price of two safes. The complaint alleged two causes of action; one for the sum of $616, less a set-off of $42.80 for safe No 187; the other for $469 for safe No. 194. Respondent by his answer admitted the indebtedness of $616, less $42.80 paid upon said sum, for safe No. 187, but denied the indebtedness of $469 on safe No. 194, the subject of the first cause of action. The action proceeded to trial by a jury, upon the right of the plaintiff to recover for safe No. 194.
The record discloses an instrument purporting to be an order, in words and figures as follows:
San Francisco.
"Please ship as directed one Number 194 safe of the dimensions and plans of interior as specified on back of this order, marked to L. Balliet, town of Tonopah, county of Nye, state of Nevada, via Hazen, for which I agree to pay to your order the sum of (469.00) four hundred sixty-nine dollars gold coin rent as follows: Cash on receipt of safe.
Freight and delivery charges to be paid by f. o. b. Sacramento.
Cash paid with this contract $_____
L. Bailliet.
Read This Carefully Before Signing.
Approved: N. O. S. Ford, Asst. Mgr.
Order for 194 Safe. 52465.
For L. Balliet.
J. F. Waterhouse, Salesman.
(56 inches high
Inside Measure (38 inches wide
(18 inches deep
Lettering to be put on safe................. .....................? ...................
Plan of interior: (When safe is to have regular plan, it is unnecessary to draw any diagram, but simply say, "Plan usual style.")
[Seal of Herring-Hall-Marvin Safe Company.]
1948.
This instrument was signed by respondent, Balliet, on or about November 27, 1906, and on the same day respondent gave a similar order, a copy of which is also contained in the record, for safe No. 187, the subject of the second cause of action. Safe No. 187 was received by respondent pursuant to the order given. On the arrival of safe No. 194 in Tonopah it appears from the record that notice was sent to respondent, Balliet. Respondent refused to accept the safe. It is the contention of appellant that order No. 194, when approved by appellant through its agent, N. O. S. Ford, constituted a complete contract.
Subsequent to the refusal of respondent to accept safe No. 194, respondent entered into a copartnership with one Murphy, which copartnership was known and designated as Murphy-Balliet Company, with its headquarters in Tonopah, Nev. Some time after the formation of the copartnership the record discloses that safe No. 194 was removed from the depot of the Tonopah & Goldfield Railroad Company by the Wittenberg Warehouse Company to the place of business of Murphy-Balliet Company; and it is the contention of respondent that there was a mutual rescission of the contract established by the terms of order No. 194, and that the sale and delivery of the safe to Murphy-Balliet Company was an independent transaction and a resale by appellant of safe No. 194 to Murphy-Balliet Company by and through the agent of appellant, J. F. Waterhouse.
At the opening of its case, appellant called respondent, Balliet, to the stand to identify order No. 194, and also to identify order No. 187. It appears from the testimony of respondent, Balliet, as we find it in the record, that the safe mentioned in order No. 194 was not to be shipped to respondent until he should designate the interior plan and cabinet work, and also direct the lettering that was to be put on the safe. It appears from the testimony of both respondent Balliet and J. F. Waterhouse, who was at least acting in the capacity of soliciting salesman for appellant, that the order was left blank as to lettering to be put on the safe, and that the order contained nothing in the way of designating the cabinet work for the interior of the safe.
Order No. 194, as it appears in the record, contains a question mark following the words "lettering to be put on safe," and this question mark was the subject of some considerable testimony in way of explanation during the course of the trial. It also appears from order No. 194, as we find it in the record, that there is an absence of instruction as to interior cabinet work. The testimony of the soliciting salesman, Waterhouse, is sharply in conflict with the testimony of respondent, Balliet, as to this phase.
However this may be, if the jury found- [145 P. 943] --as they undoubtedly did find--that the safe No. 194, designated by plaintiff's "Exhibit A," was not to be shipped to respondent until he had given instructions as to lettering and as to interior construction, their finding in this respect, being, in our judgment, supported by sufficient and substantial evidence, must not be disturbed.
From the testimony of the witnesses C. F. Wittenberg and J. H. McQuillan, members of the firm of Wittenberg Warehouse & Transfer Company, on whose premises the safe remained from the time of its delivery by the Tonopah & Goldfield Railroad Company until the time at which it was removed to the office of Murphy-Balliet, it is disclosed that the storage charges on the safe were paid by J. F. Waterhouse, and these charges were paid by him at the time at which he gave orders to the Wittenberg Warehouse & Transfer Company to deliver the safe to the office of Murphy-Balliet. Moreover, it is disclosed that the freight charges from Sacramento to Tonopah on safe No. 194 were paid by the check of Murphy-Balliet.
On the question as to whether or not the contract for safe No. 194 was executory on the part of respondent, and as to whether or not the same was mutually rescinded and terminated, the respondent, by way of defense, interposed matters in avoidance, which were questions of fact for the jury to determine. These questions primarily were as to whether or not certain lettering, to be placed upon the safe, should be designated before the time of shipment; as to whether or not interior equipment should be designated before the time of shipment; as to whether or not the order, signed by respondent, but incomplete as to these features, should be withheld by the soliciting salesman, and not sent to the main office until the instructions should be given by respondent. All of these features were questions of fact to be determined by the jury; and the condition of order for safe No. 194 with the question mark contained in the body of the order, and the absence of instructions as to internal equipment, together with the testimony of the witness McQuillan as to the positive refusal of the respondent Balliet to receive the safe; and the further fact that the freight charges on the safe from Sacramento to Tonopah were never paid by the respondent,...
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In re Ballard
...agency need not be proven directly, but may be shown instead by circumstances and course of dealing. See Herring-Hall-Marvin Safe Co. v. Balliet, 38 Nev. 164, 145 P. 941 (1915). Keystone elicited testimony from Lawson sufficient to find that he was an authorized agent of A.C. Ballard. Addit......
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Keystone Realty v. Osterhus, 21275
...the jury's verdict against them. We disagree. An agency agreement can be either express or implied in fact. See H.-H.-M. Safe Co. v. Balliet, 38 Nev. 164, 145 P. 941 (1914). It is uncontroverted that Keystone Realty did not expressly agree to act as the Osterhus' agent on the purchase of th......
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Bird v. Casa Royale West
...parties had continually been modifying the contract, are consistent with a theory of mutual rescission, see Herring-Hall-Marvin Safe Co. v. Balliot, 38 Nev. 164, 145 P. 941 (1918), or failure of the conditions of required approval by either or both parties. See Sala v. Ruthe Realty, Inc. v.......
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Crumley v. Walter M. Ballard Corp.
...is incomplete, oral evidence is admissible to supply the missing terms of the complete agreement of the parties. Herring-Hall-Marvin Safe Co. v. Balliet, 38 Nev. 164, 145 P. 941. The Nevada law on this point appears to be in accord with our own. The following California cases illustrate the......