75 Neb. 562 | Neb. | 1906
Frank D; Eager sued'the C. F. Blanke Tea & Coffee Company to recover for certain advertising and for stationery furnished one J. W. Johnston, the alleged agent of said company. It is claimed that Johnston was employed in advertising and selling goods of the Blanke company, and that the account sued on was made in their interest. The case was first tried in the county court, and upon appeal to the district court Eager filed an amended petition, which, it is alleged, contained new matter by way of an estoppel; and a motion was made to strike the petition.
The jury returned a verdict in favor of the plaintiff beloAV, and it is urged that this verdict is not supported by the ..evidence. The undisputed evidence shoAvs that the Blanke company are Avholesale dealers in teas, coffees and spices, with their principal place of business in the city of St. Louis. Charles Spies & Co. have a house at Kansas City, Missouri, Avith the exclusive right of handling the Blanke company’s coffees in certain specified territory, including the state of Nebraska. Eager offered in evidence the testimony of a stenographer employed by Johnston to the effect that Johnston received circular letters from the St. Louis house of the Blanke .company containing directions and advice to their agents. It Avas also shoAvn that Johnston made an arrangement Avith Tucker Bros, of Lincoln to handle a large' amount of coffee, nearly a carload, agreeing to take back Avhat Avas not disposed of Avithin a certain time. Tucker Bros., from the great amount involved in the deal, Avere someAvhat fearful of Johnston’s authority to carry out his agreement and telegraphed the Blanke company at St. Louis relating thereto. No. copy of this telegram, or of any reply, is contained in the record, but on July 15, 1901, Johnston Avired the Blanke company as MIoavs: “Your wire to Tucker Bros. shoAvn me. Rush this order. Ship every pound. No consignment, simply agreed to relieve them of any goods not sellers, as I selected goods myself. Will sell them as much more within twenty days. Have written fully. Answer.” It is further shown that some of the unsold coffee was taken back by Johnston. It is further in evidence that Eager gave directions to have five copies of his paper containing the advertisement of the, Blanke company’s goods, and which represented
We might here remark that the telegram was produced by Mr. Seiter, who found it among the papers of Charles Spies & Co., a fact indicating that the Blanke company
The evidence in this case lacks many of the evidential facts disclosed in Blanke Tea & Coffee Co. v. Graham, 5 Neb. (Unof.) 534, and the Blanke Tea & Coffee Co. v. Trade Exhibit Co., 5 Neb. Unof.) 358. In these cases there was direct evidence that Johnston was the agent of the company, and circumstances making it beyond dispute that that company knew that Johnston was professing to act as its general agent.
The evidence in this case does not, in our judgment, support the verdict of the jury, and we recommend that the judgment of the district court be reversed and the cause remanded.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded.
Reversed.