Northwestern Fuel Co. v. Bruns

• Citation: 45 N.W. 699,1 N.D. 137
• Decision Date: 06 May 1890
• Docket Number: 6731
• Court: North Dakota Supreme Court

45 N.W. 699

1 N.D. 137

NORTHWESTERN FUEL COMPANY, Plaintiff and Appellant, v. HENRY A. BRUNS, Defendant and Respondent

No. 6731

Supreme Court of North Dakota

May 6, 1890

APPEAL from district court, Cass county; Hon. WM. B. MCCONNELL Judge.

Judgment of the district court reversed, and a new trial ordered.

Alf E Boyesen, for appellant, cited, upon the proposition stated in the foregoing syllabus the following authorities: 2 Phil. Evidence, 668-9; Naumberg v. Young, 44 N.J.L. 331; Hei v. Heller, 53 Wis. 415; La Farge v Rickert, 5 Wend. 187; Creery v. Holly, 14 Wend. 26; Stone v. Harmon, 31 Minn. 512.

R. R. Briggs, for respondent, cited: Parsons on Cont. vol. 2, p. 502; Jones on Commercial and Trade Cont. p. 280; Hubbard v. Marshall, 50 Wis. at p. 325; Bradstreet v. Rich, 72 Me. at p. 237; Kal. Nor. Mfg. Co. v. MacAlister, 40 Mich. 88; Wharton on Evidence, §§ 1015-16; Chapin v. Dobson, 78 N.Y. 79; Abbott's Trial Evidence, p. 294; Domestic Sewing Machine Co. v. Anderson, 28 Minn. 57; Bonney v. Morrell, 57 Me. 372.

OPINION

CORLISS, C. J.

This litigation was instituted to recover the price of coal sold and delivered to defendant by plaintiff. The claim was not disputed, but defendant sought to recoup damages for a breach of the contract under which the coal was furnished. During the winter of 1885-86, plaintiff had supplied defendant with the coal used by him in conducting his hotel at Moorhead Minn. On the 21st of September, 1886, defendant wrote the plaintiff the following letter of inquiry: "Please ship me at once, one car of Willow Bank, one car of Yough., from Duluth. Will you make me the same prices and terms as a year ago, if I use about one-half to two-thirds of what I did last season?" To this letter the plaintiff wrote, September 22d, the following reply, which was received by defendant in due course of mail: "Your favor of the 21st inst. received, and we have entered your order for one car Willow Bank and one car Youghiogheny coal. In reply to your inquiry, would say we will make you price of $ 3.50 per ton on cars at Duluth for Willow Bank or Youghiogheny coal; but the terms must be cash between the 1st and 10th of month succeeding shipment, as we cannot accept paper on these prices." On October 16th, defendant mailed to plaintiff a letter of acceptance, which closed the correspondence between the parties: "Please ship me, by St. P., M. & M., one car Yough. coal. If your letter of the 22d ult. requires an acceptance, I herewith accept your offer. " Intermediate the writing of this last letter by defendant, and the other letter from plaintiff, to which it was an answer, defendant had a conversation in which, he testified, it was agreed between himself and the representative of plaintiff that he should take, at the price named in plaintiff's letter to defendant of September 22d, the amount of coal purchased by him the year before of plaintiff. This amount was not at the time of this conversation definitely known to either party, but it is undisputed that it was in fact 951 tons. This conversation is denied by the agent of the plaintiff with whom defendant claimed it was had, but the jury have found this question of fact in favor of defendant. The jury were instructed that, if this talk was had, and the amount of coal to be delivered under this contract was then agreed upon, then, in fixing the defendant's damages for failure to deliver all of the coal under the contract, the jury must consider the plaintiff as bound to deliver 951 tons. Plaintiff insists that the contract was all in writing; that under it plaintiff was bound to furnish not to exceed two-thirds of 951 tons, or 634...