Neidig v. Cole & Pilsbury
| Decision Date | 21 June 1882 |
| Citation | 13 N.W. 18,13 Neb. 39 |
| Parties | C. NEIDIG, PLAINTIFF IN ERROR, v. COLE & PILSBURY, DEFENDANTS IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Madison county. Tried below before BARNES, J. The facts are fully set forth in the opinion.
AFFIRMED.
Robertson & Campbell, for plaintiff in error.
Evidence shows that Cole & Pilsbury were agents of Mabie Brothers. Agency may be inferred from acts of parties. 1 Bouvier's Law Dic., 100. Columbus Company v. Hurford, 1 Neb 157. And same defenses can be interposed as if action had been brought by principal. Taintor v. Prendergast, 3 Hill, 72. Huntington v. Knox, 7 Cush., 371. Counsel should have been allowed to argue cause to jury. Eaton v. Carruth, 11 Neb. 231. Hollenbeck v McMahon, 25 Ohio St. 1. Hickman v. Jones, 9 Wall., 197. Barney v. Schmeider, Id., 249.
Marlow & Munger and E. F. Gray, for defendants in error.
The action in the court below was brought by the defendants in error to recover the price of a quantity of fencing material consisting of iron posts and wire, delivered by them to the plaintiff in error.
It is very questionable whether the facts alleged in the answer are sufficient to constitute a defense to the petition. The defense sought to be made by it was, that the material was delivered in fulfillment of a contract between said Neidig and the firm of Mabie Brothers, acting for and on behalf of the Iowa Central Iron Fence Company, of Marshalltown, Iowa and for which he had paid in advance, by his promissory note, the sum of one hundred and fifty dollars. It is contended with much reason by counsel for the defendants in error--and it is probably true--that the answer is wanting in omitting to state that Cole & Pilsbury furnished the articles on the credit of the Fence Company, or of Mabie Brothers, from whom Neidig ordered them, thereby conceding the claim and inference that they furnished them on the credit of him to whom they were shipped.
But, even if the answer be accepted as sufficient to admit all of the evidence offered under it, we are nevertheless of opinion that no defense was exhibited upon the trial, and that the court was right in directing a verdict in favor of Cole & Pilsbury for the amount of their demand.
So far as concerns the defendants in error, the transaction out of which this action arose was a very simple one, and about as follows: Neidig having made an agreement with the Iowa Central Iron Fence Company and Mabie Brothers, by which the latter were to furnish to him certain fencing material, sent to them an order in these words:
Mabie Brothers received this order, but for some reason, not being able to furnish the articles called for, they turned it over to Cole & Pilsbury to fill, and shortly afterwards notified Neidig of what they had done. This notification was as follows, written upon a postal card, and transmitted by mail:
This notice was not signed, but it is admitted by Neidig to have been in the hand-writing of one of the Mabies, and he accepted it as coming from them.
Upon receiving this order, Cole & Pilsbury, in their own name, shipped the goods, with the exception of a portion of the posts, as directed therein, and at the same time sent to Neidig a bill of the items and charges, as follows:
"FREMONT, NEB., April 24th, 1879.
"Mr. C. Neidig, Madison, Neb.: Bought of Cole & Pilsbury, wholesale and retail dealers in hardware," etc.
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Neidig v. Cole
...13 Neb. 3913 N.W. 18NEIDIGv.COLE & PILSBURY.Supreme Court of Nebraska.Filed June 21, 1882 ... Error to the district court for Madison county.[13 N.W. 18]Robertson & Campbell, for plaintiff.Marlow & Munger and E. F. Gray, for defendant.LAKE, C. J.The action in the court below was brought by the defendant in error to recover the price of ... ...