Snittjer Grain Co. v. Koch, 48730

• Decision Date: 07 June 1955
• Docket Number: No. 48730,48730
• Citation: 246 Iowa 1118,71 N.W.2d 29
• Parties: SNITTJER GRAIN CO., Appellant, v. Herman KOCH and James Williams, Appellees.
• Court: Iowa Supreme Court

Page 29

71 N.W.2d 29

246 Iowa 1118

SNITTJER GRAIN CO., Appellant, v. Herman KOCH and James Williams, Appellees.

No. 48730.

Supreme Court of Iowa.

June 7, 1955.

B. E. Hunter, Reinbeck, and Merle L. Royce, Marshalltown, for appellant.

DeWolf, Goodman & Huisman, Grundy Center, for appellees.

SMITH, Justice.

Although not so pleaded nor explained of record the Snittjer Grain Co. is conceded (in oral argument) to be a mere trade name under which John Snittjer operates a grain elevator at Wellsburg, Iowa. No point about it is raised by defendants however and we shall treat and refer to him as plaintiff.

He alleges that on or about December 11, 1951, defendants asked him to order a Model 25, American All Crop Dryer for them and orally agreed to pay him the $1,515 purchase price and to accept delivery at Crystal Lake, Illinois. He alleges delivery was so made to them, that he has paid for the machine and demanded payment from them.

Defendants deny practically every allegation and 'affirmatively state that defendants asked no order, nor made no order * * * but (merely) inquired of a machine 'that would do the work' of drying cribbed ear corn.' They also pleaded some affirmative defenses not set out in the Record nor deemed pertinent to the appeal.

Notwithstanding their pleaded denial defendant Williams, being put on the witness stand by plaintiff, testified: 'I am one of the defendants. We took delivery and possession of a Model 25, American All Crop Dryer at Crystal Lake, Illinois, on January 11, 1952, and had it trucked to Wellsburg, Iowa.' He was not cross-examined by defendants. His testimony stands undenied.

The testimony of plaintiff and his office manager, John Riekena, is to the effect that 'about two weeks prior to December 11, 1951' defendants were in plaintiff's elevator office. The parties talked about corn driers, specifically the 'American All Crop Dryer,' handled by Edward J. Heck & Sons Co., of Omaha, Neb.

Both plaintiff and his manager disclaimed any knowledge of corn driers. Plaintiff says he told defendants 'I would have my man call and we would try to get one if they wanted one.'

It seems defendants had seen a drier at Dysart, Iowa. 'They said they had seen * * * it hooked up to a 4000 bushel crib and it seemed like it was doing satisfactory work.' Riekena says he had 'a piece of literature on the desk with reference to a dryer and they talked about that.'

It is not shown whether inquiry about corn driers was the original purpose of defendants' visit to plaintiff's office or merely incidental. Both plaintiff and his manager testify they do not handle farm machinery and had had no experience with corn driers.

However it is undisputed plaintiff's manager, at defendants' request and in their presence, did at that time put in a phone call to the Heck & Sons Company at Omaha and that as a result, on December 11, 1951, a salesman of that company came to plaintiff's office and met defendants there. Plaintiff was present but says he neither took part in nor heard the conversation between defendants and the Heck salesman, Sivinski. Riekena, plaintiff's manager, also disclaims having taken part in it: '* * * I went about my work. I was busy that day. The salesman was there I imagine three quarters of an hour * * *. I didn't hear their conversation.'

Since the salesman, Sivinski, was not called as a witness and defendants did not testify we do not have direct evidence of the conversation. Plaintiff however, at some stage of the transaction apparently was consulted: 'After they had completed their conversation with the salesman I asked Williams and Mr. Koch if they wanted one, and they said yes. The salesman prepared the order blank or memorandum made out in reference to the purchase of a dryer. This order blank was never presented to me, and it might have been signed by my manager.'

The Record shows a duplicate written order, signed: 'Snittjer Grain Co. John Riekena. Authorized signature. Signed purchaser.' It is dated '12-11-1951' and specifies: 'Ship to Snittjer Grain Co. at Wellsburg, Iowa Salesman Sivinski.' Opposite the words 'How ship' appear the words 'will pick up.'

Both Riekena and plaintiff refer to it as a 'bill of sale' but it is on its face an order by plaintiff for '2 No. 25 All-crop driers ea. 1515.00, 3030.00, less 7 1/2% discount 2802.75.' Riekena explains there was another potential customer present who, however, that evening 'cancelled it; said he wasn't interested.' That presumably explains the order for two machines and the subsequent delivery of but one. That delivery, under the Record, was in substantial compliance with the written order.

The Record shows payment by plaintiff to the Heck & Sons Co. by two checks, one dated 12-11-51 for the $700 required down payment, the other for $701.37, dated '1-30-1952'; also an 'Original Invoice' from the Heck Company, dated Jan. 17, 1952, reciting: 'Sold to Snittjer Grain Company.' It bears a notation 'Via picked up at factory' and list price $1,515, less 7 1/2% discount $113.63 and less down payment $700 leaving balance $701.37. It is marked 'paid 1-30-52.' It describes '1-Model No. 25 American All-Crop Drier * * * $1515.00 less 7 1/2% disc. 113.62--No. 1401.37. Less down payment of 12/11/51 $700.00, $701.37.' There is also shown at the bottom the words: 'For Resale, Sivinski.'

At the close of plaintiff's evidence the trial court sustained defendants' motion to dismiss which urged insufficiency of evidence to establish the alleged contract. Plaintiff appeals.

I. It must be conceded the evidence we have already summarized was sufficient to have presented a jury issue unless, as defendants argue, it was legally overcome and nullified by plaintiff's own admissions as a witness on cross-examination. We set them out mostly in question and answer form for fair appraisal of their character:

'Q. And at that time it was you who was going to get it for them? A. No, it wasn't myself.

'Q. Who was going to get one for them? A. I was going to get it for them to help them out in other words.

'Q. And you did get it for them? A. They ordered it themselves. I didn't get nothing for them.

'Q. Who did they order from? A. From the salesman.

'Q. And they didn't order it from you at all? A. I just asked Williams if they wanted one and he said yes, and I said go place your order.

'Q. Is it your idea that they bought it from you? A. No.

'Q. From whom? A. Heck and Sons, through their agent.

'Q. So you didn't sell them the machine at all? A. No, I didn't.

'Q. Now then, as to this order, was it on an order blank? A. I imagine, I don't know. I haven't seen it to this day yet. * * *

'Q. Did the defendants talk to you concerning the price of the dryer? A. Not that I know of. They might have. I don't know about that, but I don't think so. I think the salesman gave them the price if I am not mistaken; I think he did.

'Q. Who in your opinion was the defendants to pay, if anyone, if they did get the dryer? A. They were supposed to pay us.

'Q. But you weren't selling it? A. No.

'Q. But they were to pay you? A. They did that because we made the first payment on it, the down payment.' * * *

'The price agreed upon between me and they was $1515.00. They agreed with me to purchase it at that price. * * * 'I didn't hear anything that was said between the salesman and Koch and Williams. I imagine they were talking about a dryer but I don't know. It was I that asked Mr. Koch and Mr. Williams if they wanted a dryer. * * * That was after they were through talking, and the salesman came up and I asked Mr. Williams if they wanted one and I think Koch was there too; they said yes, and I said place your order the way they wanted it. After that I imagine they gave the order. * * *

'Q. Did you buy this corn dryer for Mr. Heck or the people in Crystal Lake, Illinois? A. No, I didn't, the salesman sold it to them not to me. I didn't buy anything'; and later,

'Q. Is this statement correct that you paid for a corn dryer of which you had no interest? A. That's right.

'Q. For Koch and Williams? A. Right.

'Q. And you did not sell them the machine at all? A. I didn't sell it, no. The salesman sold it and he wasn't in my employ.'

Plaintiff's 'admissions' were manifestly in the nature of conclusions as to what constituted a 'sale,' a 'purchase,' an 'order,' etc. They show a mistaken concept of the meaning and effect of the language he used as related to what actually was done. Sometimes he denies having done something when he clearly means he did not personally perform the act but did it in fact through his office manager. The order was signed by his manager acting for Snittjer Grain Co., the trade name under which plaintiff conducted his business and delivery made to defendants. The payment for the 'Dryer' was made by plaintiff by a check similarly signed by Riekena and upon an invoice reciting a sale to plaintiff.

II. Courts have frequently wrestled with the problem that faced the trial court here. An Annotation found in 169 A.L.R. 798, et seq., reveals their conclusions have not been entirely harmonious. See also 32 C.J.S., Evidence, § 1040 c. The ultimate problem is succinctly posed by the Annotator on page 798: 'The question is simply whether, or under what circumstances, a party who has made an assertion on the witness stand, found to be unfavorable to his own case, may ask that it be disregarded.'

At page 805 the Annotation (under IV b) treats of the question presented by the party's own conflicting testimony: 'Under the older and prevailing practice, where the more favorable evidence relied on by a party to overcome the effect of his own self-injurious statement is in his own testimony, no distinction is drawn as compared with the situation where the curative evidence is from other witnesses. It is still for the trier of fact to decide the issue upon all the evidence.'

This is but another way of saying a party's own conflicting testimony like that of any other...