Neb. Bridge Supply & Lumber Co. v. Conway

• Decision Date: 07 April 1905
• Citation: 127 Iowa 237,103 N.W. 122
• Court: Iowa Supreme Court
• Parties: NEBRASKA BRIDGE SUPPLY & LUMBER CO. v. OWEN CONWAY & SONS.

127 Iowa 237

103 N.W. 122

NEBRASKA BRIDGE SUPPLY & LUMBER CO.

v.OWEN CONWAY & SONS.

Supreme Court of Iowa.

April 7, 1905.

On rehearing. Former opinion (98 N. W. 1024) withdrawn.

Action on account, to which the defendants interposed a counterclaim. There was a jury trial, and verdict and judgment in favor of defendants. Plaintiff appeals. Affirmed.

BISHOP, J.

Plaintiff is a resident of Omaha, Neb., and is engaged in the sale of lumber, etc., at wholesale. Defendants are retail lumber dealers at Ft. Dodge, this state. On January 9, 1901, one Rasmussen, a duly authorized agent of plaintiff, appeared in Ft. Dodge and negotiated with defendants for a sale of three car loads of shingles. There was written out by Rasmussen at the time, and in duplicate, the following: “Order No. 2122, 1-9, 1901. Nebraska Bridge Supply and Lumber Co.: Ship to Owen Conway & Sons at Fort Dodge, Iowa, one car M. C. & Ft. D. R. R. Three cars of Extra Star A Star, 6-2 Red Cedar Shingles at $2.21. One car to arrive March 1, 1901; one car to arrive April 1, 1901; one car to arrive May 1, 1901. [Signed] George Rasmussen.” One of the duplicate copies of the foregoing was delivered by Rasmussen to the defendants, and the other sent by mail to the plaintiff at Omaha. On January 30, 1901, defendants ordered of plaintiff by mail a car load of oak bridge lumber, the conceded price and value of which was $169.83, delivered in Ft. Dodge. On February 12th following, plaintiff wrote to defendants, in effect, that it was impossible to fill any orders for shingles at present, or to make any promises in respect thereto, and that “we are compelled to cancel your order given to our Mr. Rasmussen for shingles.” And further, in reference to the order for oak lumber, the letter continued: “The same is being sawed and will be shipped soon. But should we ship this car it will be with the distinct understanding that it shall have no connection whatever with the above shingle deal. Let us hear from you by return mail.” To this letter the defendants answered as of date February 15, 1901, as follows: “We are willing to receive the car of oak with the understanding that it will have no connection with your failure to ship shingles.” The car of oak lumber was shipped to and received by defendants, by whom the freight was paid, amounting to $94.18. Defendants having failed to pay the balance, or $75.65, this action was brought to recover the same. The defendants do not resist the right of plaintiff to a recovery of such amount due for lumber, but, in the counterclaim pleaded, damages in the sum of $120 are sought to be recovered for the failure on the part of plaintiff to comply with the alleged shingle contract, the amount claimed being the difference in value between the contract price and the value at the date of the breach thereof. To the counterclaim the plaintiff pleads: First, no contract; second, the statute of frauds; third, a waiver of damages. Of these in their order of statement.

1. Appellant admits the agency of Rasmussen, and the receipt through him of the order for shingles. It is denied, however, that there was any acceptance of such order; that, on the contrary, the same was rejected by the letter to defendant of date February 12th. If the transaction of January 9th is to be regarded simply as an order from defendant to plaintiff--it being understood that the part of Rasmussen was to transmit such order to the home office, and that only--then, clearly enough, an acceptance by plaintiff was necessary to a completion of the contract of sale. The case would then fall within the rule of McCormick v. Richardson, 89 Iowa, 525, 56 N. W. 682, relied upon by appellant. But there is no evidence in the record that the authority of Rasmussen was limited; he presented himself to defendants and offered to sell, and we think it not unfair to presume that his authority extended to the making of sales. The writing signed by him cannot be accepted as rebutting such presumption; quite to the contrary, it indicates the fact of the sale, and gives specific directions as to the matter of shipment. In no sense does it purport to be a mere proposition to buy, inviting an acceptance, given out by defendants or by their authority. The case was submitted to the jury upon a theory corresponding to our view, and therein we think there was no error.

2. The case does not fall within the statute of frauds. It is the statute that no evidence of a contract for the sale of personal property, when no part of such property is delivered and no part of the price is paid, is competent unless it be in writing and signed by the party charged or his authorized agent. Code, § 4625. It will be observed that the statute does not invalidate contracts of the character designated; it goes only to the means...