S. F. Bowser & Co. v. Fountain, No. 18913[147].

CourtMinnesota Supreme Court
Writing for the CourtHALLAM
Citation128 Minn. 198,150 N.W. 795
Decision Date15 January 1915
Docket NumberNo. 18913[147].
PartiesS. F. BOWSER & CO. v. FOUNTAIN et al.

128 Minn. 198
150 N.W. 795

S. F. BOWSER & CO.
v.
FOUNTAIN et al.

No. 18913[147].

Supreme Court of Minnesota.

Jan. 15, 1915.


Appeal from District Court, Clay County; C. A. Nye, Judge.

Action by S. F. Bowser & Company, a corporation, against P. F. Fountain and others. Verdict for defendants, and, from denial of motions in the alternative for judgment or new trial, plaintiff appeals. Affirmed.

[150 N.W. 795]


Syllabus by the Court

Where a written order for goods is given, it is competent to prove that at the time of delivery of the order the parties agreed that it should become operative only upon the happening of a contingency or the performance of a condition.

An offer to buy which requires acceptance must be accepted within a reasonable time. Where it is understood that the goods to be bought are wanted within two weeks, evidence that an offer to buy was not accepted until thirty days after it was made, sustains a finding that acceptance was not within a reasonable time.

A custom of business houses to take at least ten days to investigate the credit of a new customer could not bind the defendants in the absence of proof that they had knowledge of the custom, or that it had become so general, long established and notorious that they must be presumed to have knowledge of it.


[150 N.W. 796]

Edgar E. Sharp, of Moorhead, for appellant.

W. Geo. Hammett, of Hawley, for respondents.


HALLAM, J.

Plaintiff is located at Ft. Wayne, Ind. Defendants deal in automobile supplies at Hawley, Minn. On May 30, 1912, plaintiff's traveling salesman called upon defendants at Hawley and took their written order for a gasoline storage outfit. The order was, by its terms, subject to acceptance at Ft. Wayne, Ind. No time was specified in the writing either for its acceptance or for the shipment of the goods. Defendants' evidence is to the effect that the order was never accepted, save that shipment of the goods was made and invoices mailed to defendants June 28th. The goods arrived at Hawley July 16th. Defendants refused to receive them and plaintiff brought this action for goods sold. Defendants made two defenses, first, that the order was given upon a condition which was never performed, or a contingency that never happened, and, second, that in no event was the order accepted within a reasonable time. The court submitted both issues to the jury. The jury found for the defendants. Plaintiff moved in the alternative for judgment or for a new trial. Both motions were denied, and plaintiff appeals.

[1] 1. Whether this order, taken in connection with words or acts constituting an acceptance, was intended to form the complete contract between the parties, we need not determine. Under the decisions on this subject, which are collected in McLoone v. Brusch, 119 Minn. 286, 138 N. W. 35, this proposition may not be free from doubt. We may assume, however, that such was the intention of the parties.

It is an elementary proposition that:

‘Where, in the absence of fraud, accident, or mistake, the parties have deliberately put their contract into a writing which is complete in itself, and couched in such language as imports a complete legal obligation, it is conclusively presumed that they have introduced into the written instrument all material terms and circumstances relating thereto.’ Wheaton Roller-Mill Co. v. Noye Mfg. Co., 66 Minn. 156, 159, 68 N. W. 854, 855.

It is also well settled that:

‘Where a contract is silent as to the time of performance, the law implies that it was to be performed within a reasonable time; and, if the contract be in writing, parol evidence of an antecedent or contemporaneous oral agreement is inadmissible to vary the construction to be thus legally implied from the writing itself.’ Liljengren Furn. & Lbr. Co. v. Mead, 42 Minn. 420, 424, 44 N. W. 306, 308.

Another rule equally well settled, however, is that, in case of a simple contract in writing it is competent to show by parol that, notwithstanding the delivery of the writing, the parties intended and agreed that it should be operative as a contract only upon the happening of a future contingent event, or the performance of a condition. Westman v. Krumweide, 30 Minn. 313, 15 N. W. 255;Merchants' Exchange Bank v. Luckow, 37 Minn. 542, 35 N. W. 434;Smith v. Mussetter, 58 Minn. 159, 59 N. W. 995;Mendenhall v. Ulrich, 94 Minn. 100, 101 N. W. 1057;Chute Co. v. Latta, 123 Minn. 69, 142 N. W. 1048. The purpose and effect of such evidence is to prove a condition precedent to the attachment of any obligation under the written instrument. This is not to vary the written instrument, but to prove that no contract was ever made, that its obligation never commenced. Smith v. Mussetter, 58 Minn. 159, 59 N. W. 995. This doctrine is not inconsistent with Liljengren Furn. & Lbr. Co., supra, for the evidence there considered did vary the implied terms of the contract. Neither is Graham v. Savage, 110 Minn. 510, 126 N. W. 394,136 Am. St. Rep. 527,19 Ann. Cas. 1022, inconsistent with the doctrine above stated....

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11 practice notes
  • S. F. Bowser & Co. v. Fountain, Nos. 18,913 - (147).
    • United States
    • Supreme Court of Minnesota (US)
    • January 15, 1915
    ...such facts in this case. The objection to this testimony was properly sustained. Order affirmed. --------------- Notes: 1. Reported in 150 N. W. 795. --------------- PHILIP E. BROWN, J. (dissenting). I dissent from the application to the facts of this case of the doctrine announced in Westm......
  • Foot Schulze & Co. v. Skeffington
    • United States
    • United States State Supreme Court of North Dakota
    • February 27, 1925
    ...141 Wis. 544, 124 N. W. 488;Beach v. Nevins, 162 F. 129, 89 C. C. A. 129, 18 L. R. A. (N. S.) 288. See, also, Bowser & Co. v. Fountain, 128 Minn. 198, 150 N. W. 795, L. R. A. 1916B, 1036;Travers-Newton System v. Naab et al., 196 Iowa, 1313, 196 N. W. 36, 32 A. L. R. 780, and notes; Wigmore ......
  • State v. Roby, No. 18900[6].
    • United States
    • Supreme Court of Minnesota (US)
    • January 15, 1915
    ...was offered as a witness by the prosecution and was excluded on objections of prisoner's counsel, it was held proper for the court to [150 N.W. 795]remind the jury that the wife was an eyewitness and that defendant's neglect in calling her as a witness was a circumstance which the jury had ......
  • Nelson v. Ackermann, No. 37070
    • United States
    • Supreme Court of Minnesota (US)
    • May 24, 1957
    ...respect to the right of a party under these circumstances to call a witness whose testimony may be privileged, we said (128 Minn. 191, 150 N.W. 795): '* * * As applied to the facts of this case, we think the proper rule is stated by Wigmore as follows: 'The party desiring to compel the spou......
  • Request a trial to view additional results
11 cases
  • S. F. Bowser & Co. v. Fountain, Nos. 18,913 - (147).
    • United States
    • Supreme Court of Minnesota (US)
    • January 15, 1915
    ...such facts in this case. The objection to this testimony was properly sustained. Order affirmed. --------------- Notes: 1. Reported in 150 N. W. 795. --------------- PHILIP E. BROWN, J. (dissenting). I dissent from the application to the facts of this case of the doctrine announced in Westm......
  • Foot Schulze & Co. v. Skeffington
    • United States
    • United States State Supreme Court of North Dakota
    • February 27, 1925
    ...141 Wis. 544, 124 N. W. 488;Beach v. Nevins, 162 F. 129, 89 C. C. A. 129, 18 L. R. A. (N. S.) 288. See, also, Bowser & Co. v. Fountain, 128 Minn. 198, 150 N. W. 795, L. R. A. 1916B, 1036;Travers-Newton System v. Naab et al., 196 Iowa, 1313, 196 N. W. 36, 32 A. L. R. 780, and notes; Wigmore ......
  • State v. Roby, No. 18900[6].
    • United States
    • Supreme Court of Minnesota (US)
    • January 15, 1915
    ...was offered as a witness by the prosecution and was excluded on objections of prisoner's counsel, it was held proper for the court to [150 N.W. 795]remind the jury that the wife was an eyewitness and that defendant's neglect in calling her as a witness was a circumstance which the jury had ......
  • Nelson v. Ackermann, No. 37070
    • United States
    • Supreme Court of Minnesota (US)
    • May 24, 1957
    ...respect to the right of a party under these circumstances to call a witness whose testimony may be privileged, we said (128 Minn. 191, 150 N.W. 795): '* * * As applied to the facts of this case, we think the proper rule is stated by Wigmore as follows: 'The party desiring to compel the spou......
  • Request a trial to view additional results

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