Sheridan Coal Company v. C. W. Hull Company
| Decision Date | 10 June 1910 |
| Docket Number | 16,042 |
| Citation | 127 N.W. 218,87 Neb. 117 |
| Parties | SHERIDAN COAL COMPANY, APPELLANT, v. C. W. HULL COMPANY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: GEORGE A. DAY JUDGE. Affirmed.
AFFIRMED.
B. N Robertson, for appellant.
F. A Brogan, contra.
Each party to this suit is a corporation; the plaintiff is engaged in mining and shipping coal, and maintains offices in the city of Omaha; the defendant is a wholesale and retail dealer in coal in said city. The plaintiff demands a balance due upon shipments of coal to defendant, and the latter asserts a counterclaim because, as alleged, the plaintiff failed to deliver to the defendant 1,500 tons of slack coal in 1907. The issue between the parties is whether a contract between them made about July 19, 1907, was oral and for 2,500 tons of coal, or in writing for 4,000 tons thereof. The defendant asserts that the contract is embodied in two letters, one written bye the defendant to the plaintiff, and the other by the plaintiff to the defendant, as follows:
The defendant further alleges that Rogers is the plaintiff's general sales agent, had authority to execute the contract, and that plaintiff delivered 2,507.75 tons of said coal, but refused to deliver the remaining 1,492.25 tons thereof. The defendant's manager testifies that on July 19, 1907, he caused the letter first copied in this opinion to be written, and signed it or caused his clerk to attach the witness' signature thereto. There is considerable evidence tending to prove the manner in which the defendant transacts its business, and to the effect that the letter was duly posted after having been addressed to the plaintiff. It is conceded that the second letter was written by the plaintiff and received by the defendant. The litigants disagree as to whether this letter referred to an alleged order given over the telephone or to the letter of July 19. There is a mass of evidence in the record difficult to reconcile if all of the witnesses are gifted with accurate memories and have testified without equivocation or mental reservation.
1. It is insisted that the defendant did not plead sufficient facts in its answer to state a cause of action against the plaintiff, and therefore the court erred in submitting the issue of defendant's damages to the jury. No such question seems to have been raised in the district court. We shall, therefore, construe the pleading liberally in favor of the defendant. Merrill v. Equitable Farm & Stock Improvement Co., 49 Neb. 198, 68 N.W. 365; Latenser v. Misner, 56 Neb. 340, 76 N.W. 897.
The plaintiff argues that the letter of July 19, if written and sent, contained two conditions: (1) The coal is "to be shipped to arrive in Omaha at the rate of two (2) cars or 80 tons per day, beginning July 26"; (2) the receipt of the order must be acknowledged. The plaintiff further urges that the defendant did not acknowledge receipt of the letter of July 19, but stated that shipments would begin July 20 at the rate of 80 tons per day. It also argues that the letter of July 20 in effect rejected the conditions imposed in the offer, and converted the transaction into a conditional sale. The following is from plaintiff's brief: We are not inclined to adopt the plaintiff's theory of the legal effect of the letters. It is true, as argued by counsel, that in the making of a contract of sale the minds of the parties must assent to the same thing and in the same sense, and that a counter proposition amounts to a rejection of a proposition theretofore made concerning the same subject matter. But what will constitute an acceptance depends frequently upon circumstances. A direct, unequivocal, written acceptance of an offer to purchase is satisfactory evidence of the fact, but, if the parties have not stipulated otherwise, the acceptance need not be in any particular form nor evidenced by express words; the delivery by the vendor of a part of the property referred to in the offer to buy may take the place of words as proof of an acceptance. In the instant case we shall not assume that coal shipped from the plaintiff's mines via the Chicago, Burlington & Quincy Railway Company, July 20 would not reach Omaha on July 26 of that year; but, if there was a delay of a day or two in delivering the initial two cars of coal, the failure to perform that condition contained in the defendant's proposition was waived when it accepted the coal. If the letter of July 20 contained a counter proposition, the plaintiff was asking for more time within which to commence delivering the coal, and if the parties by their conduct, as the jury must have found, accepted the letters as the basis for a sale, it does not lie in the plaintiff's mouth to say no contract ever existed. Upon the pleadings and the proof the court was right in instructing the jury there were but two questions for their determination: (1) Was a written contract made for 4,000 tons of coal, as claimed by the defendant; (2) the amount of the defendant's damage if the contract was made.
2. The plaintiff asserts the court erred in instruction numbered 5 in assuming that the letter of July 19 was in evidence, and in stating that the letter of July 20 is an acceptance of the former communication. We think the instructions taken together properly advised the jury. Two special findings were submitted for their consideration, and they answered that the plaintiff did receive from the defendant the letter of July 19, and that the letter of July 20 was written in acknowledgment thereof. Instruction 5 is not so clear as might be desired, but we do not believe, when considered with the other instructions and the special findings, it could or did mislead the jury. The plaintiff made no request for instructions, and ought not to complain that any instruction given by the court is indefinite. Chicago, B. & Q. R. Co v. Oyster, 58 Neb. 1, 78 N.W. 359; Stein v. Vannice, 44 Neb. 132, 62...
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