Neuberger v. Robbins

• Decision Date: 19 January 1910
• Docket Number: 2032
• Court: Utah Supreme Court
• Parties: NEUBERGER v. ROBBINS

106 P. 933

37 Utah 197

NEUBERGER v. ROBBINS

No. 2032

Supreme Court of Utah

January 19, 1910

Appeal from District Court, First District; Hon. W. W. Maughan Judge.

Action by F. A. Neuberger against David Robbins, doing business under the firm name of David Robbins & Company.

Judgment for plaintiff. Defendant appeals.

REVERSED, WITH DIRECTIONS TO GRANT A NEW TRIAL.

Nebeker Hart & Nebeker for appellant.

A. A Law for respondent.

McCARTY, J. STRAUP, C. J., and FRICK, J., concur.

OPINION

McCARTY, J.

This appeal is from a judgment rendered in the district court of Cache County, Utah, in favor of plaintiff and for the sum of $ 176.73. The facts and circumstances over which the controversy arose are as follows: On or about September 1, 1907, the defendant, who, under the name of David Robbins & Co., at Salt Lake City, Utah, was engaged in business buying and selling farm products, through his agent, M. F. Rigby, contracted with plaintiff and several other parties who were engaged in farming in Box Elder County, Utah, for the purchase of their wheat. Defendant, at the time the contracts were made, paid plaintiff one hundred dollars on the purchase price of the wheat, and received from him the following receipt, which contains the terms and conditions upon which plaintiff agreed to dispose of his wheat to defendant: "September 1, 1907. Received from David Robbins & Company, of Salt Lake City, one hundred dollars in part payment of three thousand bushels number 1 white milling wheat at sixty-four cents per bushel, sacked, to be delivered f. o. b. cars at Kolmer, on October 15, 1907, balance of payment to be made on delivery of said wheat. F. A. Neuberger. (This contract not transferable.)" Immediately after the contracts referred to were entered into, the market price of wheat advanced from sixty-four cents to sixty-eight cents per bushel, and plaintiff became dissatisfied with the bargain he had made with defendant for the sale of his wheat, and, on September 18th, wrote to Mr. Rigby, defendant's agent, and informed him that neither he, the plaintiff, nor the other farmers who had contracted to sell their grain for sixty-four cents per bushel would deliver it at that price. In the course of the letter, he says: "They are not at all satisfied with the deal, and I myself . . . do not feel contented. . . . I am instructed by them to notify you positively that you cannot have this grain unless you pay them the regular market price. . . . If you want to pay the right and satisfactory price, you can have the grain; if not, the contracts will not be honored and the grain will not be furnished." On September 23d, he wrote direct to the defendant, and, in the course of his letter, stated: "Now, gentlemen, we will just give you this proposition, that if you want our wheat you will pay us as much as others are paying; if not, we cannot accommodate you, and any amounts you have advanced will be promptly returned to you with interest."

Some of the farmers who were interested with plaintiff in the matter were called as witnesses, and denied that they had authorized plaintiff to write to defendant in their behalf. This however, is unimportant, as they are not parties to the suit. In response to the letters written by plaintiff advising defendant that he would not deliver any wheat for the price specified in the contract, defendant sent his agent, Mr. Rigby, to meet with plaintiff and the other farmers who were dissatisfied with their contracts. Mr. Rigby accordingly met with the parties who were dissatisfied and agreed to pay them sixty-eight cents instead of sixty-four cents per bushel for their wheat. Plaintiff was not present in person, but was represented by his son, J. J. Neuberger, who had charge of the farm upon which the grain in question was raised. There seems to be some conflict in the evidence as to what was said upon that occasion respecting the amount of grain plaintiff should deliver under the new or modified contract. O. J. Norr, a witness for plaintiff, testified in part, as follows: "Mr. Rigby said on account of us not being satisfied he came out to make other arrangements with us." This testimony is not denied. The witness further testified: "I remarked to Mr. Rigby that . . . I didn't see how we could furnish the amount we agreed upon in the first contract, . . . and he said as far as he was concerned that would not make so much difference, 'just so we get what you have to spare. That is all we look for.'" In answer to the question, "Did you hear Mr. Neuberger say anything with reference to the amount of wheat that he would agree to sell and deliver?" the witness replied: "No, sir; he didn't state any amount." Several other witnesses testified to the same thing with respect to the amount of wheat that was to be delivered. J. J. Neuberger was called as a witness for plaintiff and testified that there were 2163 bushels of wheat raised and threshed on his father's (the plaintiff's) farm in 1907. He was questioned by plaintiff's counsel in reference to the conversation he had with Rigby at the time it is alleged a new contract was entered into for the sale of the wheat raised on plaintiff's farm, and testified as follows: "Q. What was said with reference to the quantity of wheat to be sold and delivered? A. Mr. Rigby asked me how much grain I could deliver, and I told him 2163, and he says all right. Q. What was said by you with reference to the amount that you would sell of your father's wheat? A. I told him I would deliver all I could possibly spare." This and other testimony of similar import was denied by Rigby, who testified that plaintiff sold him 3000 bushels of wheat and that he expected him to deliver that amount. He said: "That was the understanding that I had. I supposed that he was going to thresh 3000...