92 Neb. 250 | Neb. | 1912
Action to recover damages for an alleged breach of contract for the sale of a soda fountain. The action was commenced in the justice court of Dawes county, where plaintiff had the judgment. Defendant appealed to the district court, where, on a trial without a jury, the plaintiff again had judgment for the sum of $120, and to reverse that judgment the defendant has appealed to this court.
It appears that on the 9th day of March, 1908, at Crawford, Nebraska, plaintiff gave an order for a soda fountain to one J. H. Meyer, defendant’s traveling salesman, which reads as follows: “Crawford, Neb., 3-9, 1908. Manufacturers of and Dealers in Soda Water Apparatus & Supplies. Tolerton & Warfield Co. Please furnish the following goods on the terms and conditions mentioned below: Title to said goods to remain with-until
On receipt of the order, the defendant refused to accept it for several reasons, among which was that the price should have been §350 for the fountain, instead of §300, as named in the order, and wrote a letter to their salesman, Meyer, telling him that they could not accept the order, and asked him to take the matter up personally with plaintiff, and readjust the matter in conformity with a copy of an order which they inclosed to him.
On April 10, 1908, plaintiff wrote a letter to the defend ant,-in which, among other things, he said: “Now, if you want to sell me this fountain, I want to know what I am getting. Do I get a steel fount with this complete outfit? If I get this I will order this outfit on receipt of message from you to-morrow. If not, return my check at once, as I think you have had it long enough, I have another place. This fountain is to get here by 1st of May. (Signed) Roy Crowder.”
Upon receipt of this letter, the defendant, having cashed plaintiff’s check for $25 pending negotiations, sent the* plaintiff a draft for $25 in a letter apologizing to him for the mistakes and misunderstandings between them, and informing him that they would have Mr.'Meyer take the matter up Avith him again on his next trip to Crawford. Defendant also stated in the letter that it always had the option of whether to ship goods or not Avhen an order was taken by its salesmen, and that it had exercised that privilege for the reason that it could not afford to sell him a $350 outfit for $300. We have not stated all of the correspondence that passed between the parties, but have given the substance of it. When the plaintiff received the draft for $25 in repayment, of his check, he wrote the defendant, stating that he refused to accept it, but would sue for damages for failing to comply Avith the terms of his order. It appears that he kept and cashed the draft, and
The evidence contained in the bill of exceptions is in nowise conflicting, and clearly establishes the facts above stated. It is contended, among other things, that defendant was entitled .to a judgment dismissing plaintiff’s action because the evidence fails to show an acceptance of the plaintiff’s order by the home office. It appears by a clause contained , in the order itself that all such orders were subject to the approval of the defendant. The evidence clearly shows that the defendant disapproved of the order, and notified the plaintiff of that fact. In the negotiations for a change of the order, plaintiff.was the reasons why defendant could not fill it. The clause in the order was a reasonable and proper one, and was made for the protection of the defendant. No approval from delay’ can be inferred, and the plaintiff, by his acceptance of the draft for $25, in effect rescinded his order, and he was not entitled thereafter to maintain an action against the defendant for a failure to accept the same and comply with its terms.
For the foregoing reasons, the judgment of the district court is
Reversed.