65 Minn. 304 | Minn. | 1896
The complaint in this case stated two causes of action; one upon a promissory note, the other for a balance alleged, to be due on account. The latter was adjusted on the trial.
There are 23 assignments of error, but they are properly classified by counsel as relating to the ownership of the note, the existence of the contract, and the defendants’ damages for a breach thereof.
1. The plaintiff on the trial produced and offered the note in evidence, which appeared to have been indorsed in blank by the payee. The plaintiff also unnecessarily offered oral evidence tending to show that it was the owner of the note. The point is made that the plaintiff was not shown to have been the owner of the note, for the reason that the oral evidence was incompetent. It is of no consequence whether the oral evidence was competent or not, for there was no issue as to the ownership of the note under the pleadings; and, further, if there had been, the production of the note on the trial, indorsed in blank by the payee, was sufficient proof of plaintiff’s ownership. The rule is that a bill or note payable to bearer or indorsed in blank by the payee may be transferred, like currency, by delivery, and possession is prima facie evidence of ownership. Randolph, Com. Paper, §§ 777, 1645.
On December 13, 1894, the plaintiff, whose place of business was at 'Chicago, wrote the defendants at Minneapolis that if they would order 100 or 200 wheels, to be taken through the season of 1895, it would, •for an order as above stated, make a net price for the wheels of $42.50 each; terms net, 60 days from the first of each month following the sale. December 17 defendants answered, and, without accepting the ■proposition, asked for exclusive sale of the wheel in Minnesota and North Dakota. December 20 plaintiff answered that it could not ■give right to exclusive sale. December 21 defendants replied, saying they would accept the proposition with the understanding that such wheels as they should want at anytime before April 1 should be billed as of that date. December 22 plaintiff replied, saying: “We are •pleased to have you accept our proposition on the Special wheel, and ■we wish you would kindly mail us an order for from 100 to 200 ■’wheels,” and, further, that the defendants’ proposition as to billing uvheels wanted prior to April 1 as of that date was not satisfactory,
“Would be very much pleased to have you ship us immediately samples of your Special wheel. Send us two each of the lady’s and gentleman’s wheels, all with wood rims; two with Morgan & Wright, and two with Dunlop, tires (the gentleman’s wheels to be with Dunlop tires). You did not answer our question in letter of recent date as to whether a lower quotation had been quoted on this Special wheel to the competitors we are to meet in this territory. We presume that such is not the case, but want an assurance from you to that effect. Also wish it understood that the fact that we are buying this Special wheel of you is to be kept confidential, and' that our competitors are not to know from you that such is the case.”
On January 5, 1895, the plaintiff answered, saying that order for sample wheels had been entered, and they would be shipped at once, and that they had quoted the lowest possible price on the wheels.
No further communications passed between the parties until January 11, when one of the defendants, Mr. Zimmer, was in Chicago, and met a Mr. State, an employé and stockholder of the plaintiff, whose duties were to attend to correspondence, make prices, appoint agents, and do work of that kind, who then informed him that the plaintiff could not furnish the wheels to the defendants, as it had made a contract with another party. Thereupon Zimmer replied that the- defendants would insist on having the wheels in accordance with the agreement. The nest day he saw Mr. Ames, the president of the plaintiff, and told him that the defendants must have the wheels in accordance with the contract, and requested that all wheels called for by the contract should be forwarded to the defendants. Ames replied they could not furnish the wheels, because they had made an agreement with another party.
Comment on this evidence is unnecessary. It falls short of establishing a contract, for the minds of the parties never met on the proposition whether sales prior to April 1 were to be billed on that date or March 1, or as to how many wheels the defendants would order. The defendants’ counsel claims that Zimmer’s request of Ames for the wheels according to the contract was an acceptance of the plaintiff’s offer, and an order for the wheels before it was withdrawn, for the reason that State was not authorized to withdraw the offer. He appears to have been, in any event. The plaintiff is not questioning his
Judgment affirmed.