Lake City Flouring-Mill Company v. McVean

• Decision Date: 18 July 1884
• Parties: Lake City Flouring-Mill Company v. F. N. McVean
• Court: Minnesota Supreme Court

20 N.W. 233

32 Minn. 301

Lake City Flouring-Mill Company v. F. N. McVean

Supreme Court of Minnesota

July 18, 1884

Appeal by defendant from an order of the district court for Wabasha county, refusing a new trial, after trial by Start., J, a jury being waived.

Order reversed, and new trial ordered.

F. M Wilson, for appellant.

H. D Stocker, for respondent.

OPINION

Gilfillan, C. J. ^[1]

Plaintiff was engaged in operating a flour-mill at Lake City. Defendant was a commission merchant and ware-houseman, engaged in buying and selling grain at Maiden Rock, Wisconsin. In May and June, 1882, plaintiff delivered to defendant the sum of $ 1,500, in consideration of which, and of a commission of three cents a bushel for purchasing, defendant agreed to buy for plaintiff, with said money, good, sound wheat, none of it damp or musty, at the market price at Maiden Rock, and store the wheat in his warehouse, and there deliver it to plaintiff on boat or barge. Of the wheat purchased by defendant with said money, $ 606.15 in aggregate price, though when he purchased it he believed it to be good, sound, and not damp, was not good, sound wheat, but was damp, and by reason thereof became musty and wholly unfit for milling purposes. Plaintiff refused to receive this part of the wheat from defendant, but demanded of him in lieu thereof wheat of the kind and character described in the agreement. With this demand he refused to comply, offering to deliver that purchased by him as aforesaid. These are the facts found by the court below. What degree of care and skill defendant bestowed in purchasing the wheat is not stated. The action is to recover the $ 606.15.

The evidence fairly justified the finding of facts, with some qualification as to the agreement. The evidence on that point consisted of a letter from defendant to plaintiff, under date of May 1, 1882, as follows: "Yours of 28th inst received. If you wish me to buy wheat for your account, I will purchase the same way as others have paid me: 3 per cent. per bushel commission, free on board boat or barge here, and all wheat purchased for your account, after reported, at your risk in case of fire. If you wish me to purchase on above terms, send me by steamer Pepin to-day $ 300 in currency, and any instructions in regard to price, etc.; also the way you wish wheat graded." And the plaintiff's letter to him in answer, under date of May 2d, as follows: "Your favor of the 1st read, and contends noted. We send you to-day, by Capt. Murray, three...