Seven Hills Chautauqua Co. v. Chase Bros. Co.

• Decision Date: 10 June 1904
• Parties: SEVEN HILLS CHAUTAUQUA CO. v. CHASE BROS. CO. et al.
• Court: Kentucky Court of Appeals

81 S.W. 238

SEVEN HILLS CHAUTAUQUA CO. v. CHASE BROS. CO. et al.

Court of Appeals of Kentucky.

June 10, 1904

Appeal from Circuit Court, Daviess County.

"Not to be officially reported."

Action by the Seven Hills Chatauqua Company against the Chase Bros Company and others. From a judgment for defendant, plaintiff appeals. Affirmed.

L. P Tanner, for appellant.

Powers & Anderson, for appellees.

BURNAM C.J.

The appellant, the Seven Hills Chatauqua Company, a Kentucky corporation, brought this action against the Chase Bros Company, a New York corporation, doing business as nurserymen at Rochester, N. Y., to recover $375 in damages for an alleged failure to deliver to them at Owensboro, Ky. 500 Carolina poplar trees during the season of 1902, in compliance with the following written contract: "For and in consideration of $125.00 Chase Bros. Co., Rochester, New York, party of the first part, agrees to sell with the provisions set forth below to the Seven Hills Chautauqua Co. party of the second part, five hundred Carolina poplar trees F. O. B. Owensboro, Ky. described as follows: trees to be uniform in size, first grade, not less than twelve feet long nor three inches in diameter at base, and to be three years of age. Party of first part agrees that all trees dying shall be replaced by live trees at the end of twelve months. The party of the second part, Seven Hills Chautauqua Co., agrees to pay party of the first part $100.00, the amount named as consideration upon the delivery of said trees in accordance with the terms of the above contract. The party of the first part, Chase Bros. Co., agrees that party of the second part, the Seven Hills Chautauqua Co., shall retain $25.00 of the consideration above named for seven months as guarantee of the fulfillment of the terms of this contract. October 30, 1902. Chase Bros. Co., by C. V. Barnes, Agent. Seven Hills Chautauqua Co., by W. G. Archer, Super." The defendant, in its answer, alleged that it was engaged in the business of growing and selling fruit and other ornamental trees and flowers in Rochester, N. Y., and that it sold the products of its nursery through drummers on orders from persons desiring to purchase their goods, and which were always subject to their acceptance or refusal; that C. V. Barnes was one of their drummers; that it received from him in due course of mail, on one of their order blanks, an order signed by the plaintiff, asking it to ship to the plaintiff 500 Carolina poplar trees 3 years old, 12 feet high, and 3 inches in diameter at base; that accompanying the order was a copy of the alleged contract filed with plaintiff's petition; that it refused to accept the order or sign the contract, and immediately gave notice thereof to the plaintiff, and returned the order and copy of the contract to Barnes. They further allege that Barnes had no authority to sign its...