Moline, Milburn & Stoddard Company v. Pereau
| Decision Date | 04 November 1897 |
| Docket Number | 7484 |
| Citation | 72 N.W. 956,52 Neb. 577 |
| Parties | MOLINE, MILBURN & STODDARD COMPANY v. LAWRENCE PEREAU |
| Court | Nebraska Supreme Court |
ERROR from the district court of Buffalo county. Tried below before HOLCOMB, J. Reversed.
REVERSED AND REMANDED.
Gaslin Newman & Hallowell, for plaintiff in error.
References 1 Parsons, Contracts [5th ed.], 539; Prairie Farmer Co v. Tailor, 69 Ill. 441; Butler v. School District, 24 A. [Pa.], 308; Stultz v. Loyal-Hanna Coal & Coke Co., 18 A. [Pa.], 875; Johnson v. MacLain, 43 Am. Dec. [N. Y.], 103; 21 Am. & Eng. Ency. Law, 517; Washington v. Johnson, 7 Humph. [Tenn.], 468; Reed v. Randall, 29 N.Y. 363; Gaylords Mfg. Co. v. Allen, 53 N.Y. 515; Dewey v. Erie Borough, 53 Am. Dec. [Pa. St.], 533; Barton v. Kane, 18 Wis. 275; Boothby v. Scales, 27 Wis. 637; Burton v. Stewart, 20 Am. Dec. [N. Y.], 694; Owens v. Sturgis, 67 Ill. 267; Voorhees v. Earl, 2 Hill [N. Y.], 291; Casey v. Gruman, 4 Hill [N. Y.], 625; Maxwell v. Lee, 34 Minn. 511; Olson v. Mayer, 56 Wis. 555; McCormick v. Martin, 32 Neb. 726.
W. D. Oldham, contra.
In the district court of Buffalo county, Moline, Milburn & Stoddard Company sued Lawrence Pereau to recover the purchase price of a hay ricker which the company alleged it had sold and delivered to him at an agreed price. Pereau answered that he purchased the ricker on trial with the agreement that if after giving it a fair trial it should do satisfactory work then he should pay $ 80 for it; that he gave the ricker a fair trial and it did not do satisfactory work. The jury found a verdict in favor of Pereau, whereupon the district court dismissed the company's action and it prosecutes error.
1. The undisputed evidence in the case shows that about the middle of August, 1891, the company, through its agent, entered into a contract with Pereau in and by which it sold to him for $ 80 the ricker sued for, warranting it to do good work. Pereau was to give the ricker a fair trial, and if it proved satisfactory he was to execute to the company his two promissory notes of $ 40 each therefor; that about the 25th of August the company delivered the ricker to Pereau, who in connection with the company's agent put up the ricker and tried it, and Pereau then expressed himself as being entirely satisfied with it; whereupon the company's agent made out the notes for him to sign according to the contract; but Pereau then requested that he might be given one more day's time in which to try the ricker, and promised the company's agent that if he was given such additional time,--if the machine on another day's trial proved satisfactory,--he, Pereau, would sign the notes which the agent left with him and transmit them to the company's place of business in Omaha; and if the machine did not prove satisfactory he, Pereau, would telegraph the agent to that effect at Grand Island. The company's agent accepted this modification of the original contract of sale and Pereau retained the machine. He did not execute the notes, and he did not notify the company or its agent by wire or otherwise of his dissatisfaction with the machine until the 5th day of October following.
The contract...
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