Wemple v. Northern Dakota Elevator Company

• Decision Date: 28 December 1896
• Docket Number: 10,319--(168)
• Parties: D. S. WEMPLE v. NORTHERN DAKOTA ELEVATOR COMPANY
• Court: Minnesota Supreme Court

69 N.W. 478

67 Minn. 87

D. S. WEMPLE v. NORTHERN DAKOTA ELEVATOR COMPANY

Nos. 10,319--(168)

Supreme Court of Minnesota

December 28, 1896

Appeal by plaintiff from an order of the district court for Hennepin county, Elliott, J., denying a motion for a new trial. Affirmed.

Geo. D Emery and Houpt & Baxter, for appellant.

The letters constituting the actual contract upon which the wheat was delivered impliedly assent to plaintiff's assertion that he would not pay storage, and avoid any mention of storage charge on the part of defendant. It was so understood by plaintiff when he delivered the wheat, and could not subsequently be changed by any printed contract tendered him by defendant. The delivery of the printed storage receipts after the contract made by the letters had been executed by plaintiff, was ineffectual to change the actual agreement. C. Aultman & Co. v. Kennedy, 33 Minn. 339, 23 N.W 528. The acceptance of the tickets under the representations of the agent did not operate to change the contract. The question whether this was the real contract between the parties was for the jury.

Wilson & Van Derlip, for respondent.

START C. J. CANTY, J., concurring.

OPINION

START, C. J.

The complaint in this action alleged that on September 2, 1891, the plaintiff sold and delivered to the defendant 3,340 bushels of wheat, upon the express agreement that the wheat should be delivered into the defendant's elevator at French, in the county of Otter Tail, and that the defendant should pay the plaintiff therefor, at any time when demanded, the market price of the same grade of wheat on the day of the demand in either of the cities of Minneapolis or Duluth, less 13 cents per bushel, and that the wheat, when so delivered, should be the property of the defendant; that the wheat was delivered, pursuant to this contract, on September 2, 1891, and the payment of the purchase price demanded August 1, 1895, which was refused. The answer denied that the defendant ever purchased the wheat on any terms, and alleged that the defendant received the wheat into its elevator for storage, and issued to the plaintiff the usual storage receipts, stating on their face the scale of insurance, storage, elevator, and delivery charges on the wheat, which tickets were accepted and retained by the plaintiff. The reply admits the delivery of the receipts to plaintiff, but denies that they constituted any part of the contract of the parties.

On the trial, at the close of the plaintiff's case, the trial court dismissed the action, for the reason that the plaintiff had not proven the cause of action alleged in his complaint. He appealed from an order denying his motion for a new trial.

The real question in this case is, was the evidence, including that which was stricken out by the trial court, sufficient to justify a finding by the jury that the plaintiff sold and delivered the wheat to the defendant pursuant to the special contract alleged in the complaint? The evidence tended to show the following facts: The plaintiff's brother, D. D. Wemple, had charge of the defendant's elevator at French, with authority to buy wheat or receive it in store for the defendant. If he purchased wheat, he issued a cash ticket for it. If he received it in store, he issued a storage ticket or receipt for it, stating the terms of the bailment. The prices to be paid and the terms of storage were determined by the defendant, and its agent Wemple had no authority to make any change in the usual tickets, or vary the price to be paid from the price list furnished by the defendant more than one or two cents per bushel.

On August 16, 1891, D. D. Wemple wrote the defendant's general manager at Minneapolis for the best terms on which the defendant would handle his brother's (the plaintiff's) wheat. The defendant answered, August 17, in substance, that if the plaintiff would deliver from 2,000 to 4,000 bushels of wheat, it would allow him 13 cents off Duluth or Minneapolis cash price any day he wished to sell after the wheat was delivered into the elevator. If he accepted the offer, the agent was to wire for cash prices when plaintiff was ready to sell, or issue tickets at list price, and get check for difference later. On August 18 the plaintiff himself wrote to the defendant, asking on what terms he could dispose of his wheat to the defendant, without storage, and with the right to take the price when he got ready to sell, and further stating that he would not pay any storage. The defendant's general manager, on August 19, in answer, sent to the plaintiff the following letter:

"I am in receipt of your favor of the 18th inst., and note contents. In reply, will say we would like very much to handle your wheat, but cannot afford to do it on any better terms than 13 c. off either Duluth or Minneapolis cash price day of sale. It costs us 2 cts. per bushel to handle at the elevator, and 1 ct. per bushel to cover expense at the terminal point, and at the price we have agreed to handle for you, it leaves us about 1 ct. to guaranty weight and grade. We will handle it through the house for you; that is, putting it in special bin, receiving, and delivering on board car, for 2 c. per bushel, not guarantying either weight or grade."

He also at the same time forwarded to the agent at French the following letter:

"I am in receipt of a letter, under date of 18th inst., from your brother in reference to his crop. We cannot afford to handle it for less than 13 c. off...