McCaffrey Brothers Co. v. Hart-Williams Coal Co.

• Decision Date: 26 September 1914
• Docket Number: 17,822
• Citation: 148 N.W. 966,96 Neb. 774
• Parties: MCCAFFREY BROTHERS COMPANY, APPELLEE, v. HART-WILLIAMS COAL COMPANY, APPELLANT
• Court: Nebraska Supreme Court

148 N.W. 966

96 Neb. 774

MCCAFFREY BROTHERS COMPANY, APPELLEE, v. HART-WILLIAMS COAL COMPANY, APPELLANT

No. 17,822

Supreme Court of Nebraska

September 26, 1914

APPEAL from the district court for Douglas county: LEE S. ESTELLE JUDGE. Affirmed.

AFFIRMED.

Smyth Smith & Schall, for appellant.

Mahoney & Kennedy, contra.

SEDGWICK J. ROSE, J., not sitting.

OPINION

SEDGWICK, J.

The plaintiff brought this action in the district court for Douglas county to recover on an alleged contract of sale of a quantity of Portland cement by defendant to plaintiff. It is alleged that defendant failed and refused to fulfil its contract, though duly requested so to do. The defendant filed a general demurrer to the amended petition, which was overruled, and judgment entered for plaintiff. Defendant has appealed.

The contention is that the allegations of the petition are insufficient, and that it is not alleged that the defendant made any contract whereby it agreed to sell plaintiff the cement specified. The petition alleges: "On the 6th day of May, 1910, the defendant entered into a contract in writing with the plaintiff, a copy of which contract is hereto attached marked exhibit A. In said contract defendant agreed to deliver 2,500 barrels of Portland cement to the plaintiff as ordered, but not later than December 1, 1910, for the agreed price of 85 cents per barrel f. o. b. the mill on freight rate basis to Omaha, Nebraska, of 38 cents per barrel, and plaintiff agreed to purchase said cement on said terms." Exhibit A is as follows: "Order No. 1. Date 5-6-1910. Hart-Williams Coal Co. Ship to McCaffrey Bros. Co., at Omaha. When: As ordered, commencing at once. How ship: As ordered during the life of job, not later than Dec. 1st, 1910. Terms: Usual. Salesman: . Buyer: . Not less than 2,000, with option on 2,500, bbls. Portland cement from Lumberman's Portland Cement Co. Cement furnished guaranteed standard quality and to pass all standard tests as prescribed by the American Society of Civil Engineers. Ship one car at once. Price 85c. per bbl. f. o. b. Will present frt. rate 38c. per bbl. E. G. Hickey, W. S. A. Accepted: F. O. McCaffrey."

A contract for the sale of personal property for the price of $ 50 or more, when no payment is made on the purchase and no part of the goods accepted, cannot be enforced unless "a note or memorandum of such contract be made in writing and be subscribed by the party to be charged thereby." Rev. St 1913, sec. 2631. The petition alleges that E. G. Hickey, who signed the memorandum of contract, was duly authorized by defendant to make such contract, and that McCaffrey was duly authorized by p...