48 Neb. 805 | Neb. | 1896
Birchard, Bridge & Co. sold to Henry Beckman certain wheat in the possession of the former at Norfolk, estimated at from eight to ten thousand bushels, at seventy-one and three-fourths cents per bushel, the wheat to be delivered on board cars at Norfolk, Beckman being engaged in the milling business at Neligh. Tlys action was brought by Birchard, Bridge & Co. against Beckman to recover a portion of the purchase price. The controversy primarily relates to the amount of wheat delivered, Beckman claiming that he has paid in full for all delivered to him and Birchard, Bridge & Co. claiming that a greater amount was delivered than Beckman concedes. The trial resulted in a verdict for the plaintiffs
Tbe contract between tbe parties contained no provision whatever for ascertaining tbe amount of tbe grain. After six cars bad been delivered, a controversy having arisen as to tbe amount of their contents, Mr. Birchard visited Mr. Beckman’s agent at Neligh and bad some negotiations in regard to tbe matter. Tbe plaintiffs contend that no adjustment was made of tbe existing dispute, while tbe defendant contends that it was then agreed that tbe wheat already delivered should be paid for by defendant according to tbe result of bis own weighing. On this point tbe evidence is conflicting. In order to avoid future disputes it was, however, then agreed that tbe amount of tbe remaining wheat should be determined by tbe weight given by tbe railroad company. This attempt to provide a certain basis for tbe remainder of tbe transaction was unfortunately frustrated by tbe fact that for three of tbe remaining cars the railroad company gave different weights. As to these cars tbe bill of lading in each instance gave a greater weight than that given by tbe freight bill delivered to Beckman. Tbe plaintiffs then insisted that tbe weight was to be determined by that reported on tbe bill of lading, while tbe defendant insisted that tbe freight bill was to govern. Tbe evidence was again conflicting as to which of these weights tbe conference at Neligh determined should govern tbe transaction. Tbe conflict of the evidence upon these two points, as well as the conflict as to tbe actual weight of tbe grain, is such that tbe verdict cannot be disturbed. There was sufficient evidence to sustain tbe plaintiffs’ contention on both points. Tbe suit was begun at a time when, according to defendant’s own theory, he owed the plaintiffs $1,694.68. He employed Mr. O’Day, a lawyer of Neligh, to go to Norfolk to make a settlement. Mr. O’Day there tendered to the plaintiffs $1,694.68. This was accepted by tbe plaintiffs, and defendant now
Judgment affirmed.