Pettis v. Green River Asphalt Company

• Decision Date: 07 April 1904
• Docket Number: 13,215
• Parties: EDWARD F. PETTIS v. GREEN RIVER ASPHALT COMPANY. [*]
• Court: Nebraska Supreme Court

99 N.W. 235

71 Neb. 513

EDWARD F. PETTIS v. GREEN RIVER ASPHALT COMPANY. ^[*]

No. 13,215

Supreme Court of Nebraska

April 7, 1904

ERROR to the district court for Lancaster county: LINCOLN FROST JUDGE. Reversed.

REVERSED.

Edward F. Pettis and Field & Andrews, for plaintiff in error.

J. W Deweese and Frank E. Bishop, contra.

HASTINGS C. AMES and OLDHAM, CC., concur.

OPINION

HASTINGS, C.

Plaintiff filed petition in the district court for Lancaster county, alleging that the defendant is a corporation of the state of Missouri; that about June 1, 1902, defendant employed plaintiff to perform services in and about the conducting of business as paving contractors in the city of Lincoln, and agreed to pay for such services so contracted for 10 cents a square yard, amounting to $ 1,876; that plaintiff fully performed all of the services as by said contract he agreed to perform, and thereby defendant became indebted to him in the sum of $ 1,876, none of which has been paid. The defendant answered, saying that, still relying upon its objection to the jurisdiction for lack of legal service of summons, it admitted its incorporation in the state of Missouri, and denied plaintiff's other allegations. A reply was filed asserting jurisdiction, and that such jurisdiction had been found by the trial court, and that its conclusion on that subject was final. Trial was had to a jury, and a verdict returned for the defendant. The plaintiff brings error, and complains of the fifth instruction given by the court, which is as follows:

"The jury are instructed that, in order to establish the contract sued on, it is necessary for the plaintiff to show that the minds of the plaintiff and defendant, through its vice-president, Mr. R. W. Speir, met, and that the contracting parties mutually agreed to the terms of the contract substantially as set out in plaintiff's petition. The fact, if you find such to be true, that plaintiff performed services for the defendant under some other contract, expressed or implied, with the defendant, would not be sufficient to establish plaintiff's allegations in this case, nor should the proposition of compromise or settlement shown in evidence be considered by you in determining what is due the plaintiff on the contract sued on, in the event that you find from the evidence and under these instructions that anything is due him."

It is urged that this instruction unduly narrowed the issues in the case and the application of the evidence. Of course, under the pleadings it was necessary for the plaintiff to establish his contract. This instruction told the jury that it was necessary for the establishment of that contract to prove that the minds of the plaintiff and defendant, through its vice-president, met, and that they mutually agreed to the terms of the contract substantially as set out in plaintiff's petition. The jury were also told that the fact that plaintiff performed services under some other contract, expressed or implied, would not be sufficient to establish plaintiff's allegations in this case. The two clauses taken together could have been interpreted to mean nothing else than that the only way by which plaintiff could establish his alleged contract with defendant, was by showing an express agreement on each side between the plaintiff and defendant's vice-president, on the one part, to perform these services and, on the other, to pay for them the stipulated price. Of course, if this was all the case which the plaintiff was tendering evidence to establish, the instruction would be correct. It is ordinarily necessary in order to establish a contract that the minds of the parties meet. It is so in this case. There must have been an intention on the part of each of them to contract; but it is not necessary that they mutually agreed, at the only interview which ever took place between plaintiff and defendant's vice-president, to the "terms of the contract substantially as set out in plaintiff's petition." It would be entirely sufficient to establish the contract set out in plaintiff's petition, that a proposition to procure certain services from the plaintiff at the alleged rate, was made to the plaintiff by defendant's vice-president at the interview, which took place in Sioux City, and that on his return home and his investigating the circumstances, the plaintiff engaged in the performance of the services and, with the defendant's knowledge and without any withdrawal of the proposition, performed them. While it is necessary that the minds of the parties meet, it is not necessary that they meet at any specific time or place, and if by words or action, or by both, the plaintiff, within a reasonable time and before it was withdrawn, accepted a distinct proposition made at the date alleged in Sioux City, and performed the several things contemplated in that proposition, he would be entitled to claim the contract as of the date of the proposition. Plaintiff claims that such is the real state of affairs, which his evidence tends to establish, and that, consequently, the instruction confining him strictly to proof of mutual agreements entered into at...