54 Neb. 743 | Neb. | 1898
The Charter Gas-Engine Company of Sterling, Illinois, wrote a letter to W. M. Shook at Coleridge, Nebraska, in which it stated: “We will furnish you a No. 6 Charter gas engine, thirty-six indicated, twenty-five actual, horsepower, for $1,250. * * * We guaranty that the Charter does not use to exceed one gallon of gasoline in ten hours to each indicated horse-power doing full work, and when part work is done the consumption is in proportion. . No settlement is asked for from responsible parties until the engine is running and meets our claims.” In response to this Shook sent the engine company the following letter: “You offer me No. 6 Charter gas engine for $1,250, and I now make you this proposition: I will give you $1,250 for a No. 6 Charter gas engine. You deliver it at Coleridge, Nebraska, and give me sixty days’ trial. If at the end of sixty days it performs as you guaranty, I will pay cash. I deposit at the Coleridge State Bank the sum of $1,250 immediately on acceptance of this order, subject to your order, provided the engine comes up to guaranty.” Under date of August 5, 1892, the engine company responded to Shook’s letter as follows: “We accept your proposition of $1,250 for No. 6 Charter, thirty-six indicated, twenty-five actual, horsepower, on cars Coleridge, Nebraska. You to deposit at the Coleridge State Bank the sum of $1,250 on receipt of this acceptance of your order, and to have sixty days’ trial of engine to see that it meets our guaranty.” Shook deposited the $1,250 in the Coleridge State Bank, to be paid to the engine company in case it should fulfill the requirements of the contract, and the engine' company shipped the engine to Coleridge. Shook took possession of it, put it up, and began using it about September 1, 1892. Shook retained possession of the engine for more than sixty days after he received it, and while it was in his possession it was destroyed by fire. The engine company brought this suit against the bank
1. The first question presented by the record is: What is the proper construction of the contract between Shook and the engine company? Was the contract an actual sale and delivery of the engine, accompanied by the vendor’s warranty that it would meet certain requirements, or was the contract one of conditional sale; the sale to become effective only if, after trial of the engine, it met the requirements of the vendor’s warranty? We do not think this contract was one of an absolute sale and delivery of the engine, accompanied by the warranty
2. The second question presented by the record is the sufficiency of the evidence to sustain the jury’s finding that Shook’s retention of the engine for more than sixty days after he received it was with the consent of the engine company and for the purpose of continuing the trial of the engine, endeavoring to make it come up to the requirements of the contract between Shook and the engine company; and that Shook had not waived the performance of the conditions precedent in pursuance of which the engine was delivered to him. We think the evidence shows beyond all question that this engine never developed twenty-five actual nor thirty-six indicated horse-power, and that it consumed more than one gallon of gasoline in ten hours to each indicated horsepower developed; and that Shook never accepted this engine and thus consummated the sale; and that he refused to accept it because the engine did not come up to the requirements -of the contract. We think, also, that the evidence sustains the jury’s finding, that Shook’s possession of this engine for more than sixty days after he
Affirmed.