Simonds v. Wrightman
| Decision Date | 20 November 1899 |
| Citation | 36 Or. 120,58 P. 1100 |
| Parties | SIMONDS et al. v. WRIGHTMAN. |
| Court | Oregon Supreme Court |
Appeal from circuit court, Marion county; George H. Burnett, Judge.
Action by Henry A. Simonds and another, as partners under the firm name of F.W. Simonds & Son, against Frank T. Wrightman. Judgment for plaintiffs, and defendant appeals. Reversed.
This is an action to recover the possession of 173 bales of hops, or their value, in case possession thereof cannot be had. The answer, after denying the material allegations of the complaint, avers that, an action having been commenced in the circuit court of Marion county by Kola Neis against Phil Neis to recover the sum of $2,134.70 and interest and attorney's fees, a writ of attachment was duly issued therein, in pursuance of which the defendant, as sheriff of said county, seized said hops as the property of the defendant in said action. The reply having denied that Phil Neis on that or any other day, or at all, was the owner of in possession of said hops, a trial was had, resulting in a judgment for plaintiffs, and defendant appeals.
Kaiser & Slater, for appellant.
W.H Holmes, for respondents.
It is contended by defendant's counsel that the court erred in permitting plaintiffs, over their objection and exception, to introduce evidence tending to controvert their reply, and in refusing to give an instruction asked by defendant to the effect that, under the pleadings, plaintiffs could not claim title to the hops by direct purchase from Phil Neis & Co. The bill of exceptions shows: That Phil Neis was engaged in the hop business under the name of Phil Neis & Co., and, having secured samples of hops from various growers, he numbered and sent them to plaintiffs, who were hop merchants doing business at No. 18 South William street New York. That with such samples was one numbered 24 representing hops grown by G. Storts and Wong Tong, near Townsend, a station in Marion county on a branch of the Southern Pacific Railroad. That on October 19, 1896, Phil Neis sent to plaintiffs from Salem a cipher telegram, the translation of which, as far as applicable to the case at bar, reads as follows: "We offer No. 24 at 9 5/8 cents, New York, for immediate answer." On the following day he received from them a message, the translation of which is as follows: "Sample No. 24, we accept your offer, 9 5/8 cents." Neis immediately telephoned his agent at Woodburn to buy said hops, consisting of 173 bales, at 7 1/2 cents per pound, which the latter did, paying on account thereof the sum of $1, and agreeing to pay the remainder of the purchase price on October 24, 1896, when the hops were to be weighed and received. That on the day so agreed upon the hops were inspected, and two days thereafter, Storts and Wong Tong having placed all but 17 bales in cars, Neis paid them the remainder of the purchase price from his own funds, and left them a receipt, to be signed by an agent of the railroad company, to the effect that Neis also on the same day mailed to plaintiffs the following invoice:
Salem, Oregon, Oct. 26, 1896.
Messrs. F.W. Simonds & Son, Bought of Phil Neis & Co., Hop Merchants.
173 bales Oregon hops, identical lot, sample No. 24,
31,873 lbs. net, @ 9 5/8 c
....................................................
$3,067 77
Less freight, 33,084 lbs. gross, @ 1 1/2 c
.............................
496 26
---------
$2,571 51
The defendant, as sheriff of said county, on October 28, 1896, attached said hops as the property of Phil Neis, who thereafter made an affidavit and executed an undertaking, thereby securing possession of the attached property, which he sold, and retained the proceeds. It also appears that plaintiffs have never received the shipping receipt, nor paid any sum whatever on account of the purchase of the hops.
The method of doing business which existed between plaintiffs and Phil Neis is shown by the following letter: "Phil Neis & Co., Hop Merchants. Seattle, Wash., Sept. 13, 1893. Mr. F.W. Simonds & Son, 18 South William Street, N.Y.--Dear Sirs: Since our last respects of the 11th inst., we received your favor of the 5th inst. Contents noted, with thanks. We could have offered you 200 bales of Oregon hops at less than figures 22 cts., delivered there, equal and similar to sample No. 1, which we mailed you to-day, but we did not consider them the right quality for the English market. We know exactly what quality you desire. All our offers and our orders will be delivered New York, but only cost and freight, as the railroad company guaranties delivery of hops. No one insures shipping from the coast points east. Nevertheless, if you wish insurance, we will insure. Washington hops are shipped by either Northern Pacific R.R. or Great Northern via St. Paul, and go through within fifteen or sixteen days from date of shipments. We always ship Oregon hops to New York via Southern Pacific and Sunset Route to New Orleans, and from New Orleans via steamer to New York. The Sunset Route carries the risk of marine insurance between New Orleans and New York. Shipments also go through on this route within 15 or 16 days from coast to New York. In shipping to you, we will do the same as with all our customers,--draw sight drafts, shipping documents attached. We draw one sample from every ten bales, representing the average quality of shipment, which we will mail to you. Our offers and your orders are good for 24 hours, unless otherwise stipulated. We guaranty the quality of shipments, either by samples or as offered by us. In case of dispute, the question to be settled by arbitration. Nothing will be left undone on our part to give you full satisfaction, and we hope that we will be able to do a large business with your...
To continue reading
Request your trial
-
John I. Haas, Inc. v. Ellis
...Ray was called upon to make up quality or quantity shortages, and none during the years 1950 and 1951. Plaintiff cites Simonds v. Wrightman, 1899, 36 Or. 120, 58 P. 1100, as evidencing no change in the method of buying hops as testified to by Mr. Ray. To the contrary, we find in Simonds a s......
-
Scales v. First State Bank
... ... therefore the province of the court to determine its legal ... effect. Section 136, L. O. L.; Simonds v. Wrightman, ... 36 Or. 120, 125, 58 P. 1100; Sharp v. Kilborn, 64 ... Or. 371, 374, 130 P. 735; ... [172 P. 501] d v. Johnson, 38 ... ...
-
Casto v. Murray
... ... property in question when the action ... [81 P. 885] was commenced. Kimball v. Redfield, 33 Or. 292, 54 ... P. 216; Simonds v. Wrightman, 36 Or. 120, 58 P ... 1100. After eliminating the part of the complaint now under ... consideration, the remaining ... ...
-
Ylvich v. Kalafate
...the plaintiff is the owner, and is entitled to the possession, of the property involved, at the time the action is begun: Simonds v. Wrightman, 36 Or. 120, 58 P. 1100. The property sought to be recovered must be identified with reasonable certainty: Guille v. Wong Fook, 5, 6. In the case at......