Lee v. Bangs
| Decision Date | 18 February 1890 |
| Citation | 44 N.W. 671,43 Minn. 23 |
| Parties | Helmer H. Lee v. William H. Bangs, Jr |
| Court | Minnesota Supreme Court |
Plaintiff (doing business under the name of the Sole-Leather Over Manufacturing Co.) brought this action in the district court for Norman county, to recover the price ($ 162.25) of 96 pairs of "overs," sold and delivered to defendant between June 27 and November 15, 1888. The defendant in his answer alleged that the goods were ordered May 25, 1888, and were to be shipped to him in the fall of 1888, when needed; that at the time of the order it was agreed that in case of a failure of the wheat crop in Norman county, or among his customers in that county, and if in consequence he could not use or sell part of the goods, he might countermand and cancel the order for as many of the goods as he should for such reason be unable to sell; that the plaintiff shipped all the goods June 27th, at least four months earlier than they could be sold, and contrary to the agreement; and on August 16th he notified plaintiff by letter that the crop had been destroyed, and he could not use or sell more than 2 cases or 48 pairs, and that plaintiff must ship the other cases elsewhere, and he would merely hold them subject to plaintiff's order, and this notification was a second time given November 15, 1888; that the crop was in fact a failure, and he was able to sell but 30 pairs amounting to $ 48.04, which sum he has paid plaintiff; that the goods were sold by sample exhibited when the order was given, which sample was warranted to be well made, strong and durable, and of good material, and he relied solely on the warranty; but the goods were not equal to the sample, and were poorly made of bad material, and he refuses to accept them and is ready to deliver to plaintiff all that he has not sold. At the trial, before Mills, J., the court, on plaintiff's motion ordered judgment in his favor, on the pleadings, for $ 119.50. Defendant appeals from an order refusing a new trial.
Order affirmed.
John M Martin, for appellant.
A. C. Wilkinson, for respondent.
The order of the court below for judgment on the pleadings in favor of the plaintiff (allowing defendant the part-payment set up by him) was right. The matters set up in the answer constituted no defence. The answer admits that defendant ordered the goods that were sent to him, and the price of them, but alleges that he gave the order...
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