Howell v. Graff

• Decision Date: 14 December 1888
• Parties: HOWELL ET AL. v. GRAFF ET AL.
• Court: Nebraska Supreme Court

25 Neb. 130

41 N.W. 142

HOWELL ET AL.

v.GRAFF ET AL.

Supreme Court of Nebraska.

Dec. 14, 1888.

Syllabus by the Court.

1. A special agent, who acts within his apparent power, will bind his principal by his contracts, even if he has received private instructions which limit his special authority; but if he exceed his apparent power, his principal will not be bound.¹

2. Upon the facts proved, held, that the agent did not have absolute power to make a sale, and the same was subject to approval by his principal.

3. Where both the plaintiff and defendant called witnesses to establish usage, neither can assign error in the admission of such testimony.

Error to district court, Douglas county; GROFF, Judge.

Action on a contract for the sale of lumber by Howell, Jewett & Co. v. Graff, Murray & Co. Judgment in favor of defendants, and plaintiffs bring error.Smith & Solomon, for plaintiffs in error.

Clinton N. Powell, for defendants in error.

MAXWELL, J.

On the 30th day of September, 1886, the plaintiffs filed a petition in the district court of Douglas county against the defendants to recover the sum of $1,419.30, with interest, for breach of contract, for that, on the 4th day of August, 1886, the defendants entered into a written contract of sale with plaintiffs, and on that day sold to the plaintiffs a certain lot of dimension timber, for immediate shipment, delivered at Atchison, Kan., all white pine, at $16.50 per thousand. Terms, 90 days. The contract of sale was in writing. The defendants failed to deliver any part of the lumber, and this suit was brought to recover the difference between the contract price, to-wit, $16.50 per thousand, and the market price, the difference being $1,419.30. The defendants, in their answer, set up that their agent, Fyfe, who made this contract, was on the 4th day of August, 1886, employed by the defendants to solicit orders for certain kinds of lumber, certain specified kinds and grades only, and that he had special and specific orders and instructions not to solicit orders for lumber of any kind or grade from plaintiffs, or to have any dealings with them whatsoever, and that he had no authority to receive or accept orders from plaintiffs, or to enter into any contract with them, and setting out that the prices in said contract were below the market prices and values of lumber at the time, and also below the prices at which Fyfe was instructed to take and solicit orders; and further alleging that the contract was made by mistake, and that after it was made said agent notified the plaintiffs, and that the same was canceled, and annulled. On the trial of the cause in the district court below a jury was waived, and the cause submitted to the court, which found for the defendants and...