84 Neb. 821 | Neb. | 1909
This is a suit by the Fruit Dispatch Company to recover from Bernard Gilinsky the purchase price of a carload of bananas shipped from NeAV Orleans to Council Bluffs. The fruit weighed 21,500 pounds, and the price was $1.70 a hundred Aveight. The jury rendered a verdict in favor of plaintiff for $396.95, the full amount of its claim and interest. From a judgment- for that sum defendant appeals.
The parties disputed over the terms of their agreement. Plaintiff’s understanding is that the sale Avas controlled by the terms of a Avritten contract applicable to all sales to defendant and containing uniform provisions, one of which required him to accept the fruit Avlien delivered to the carrier at the seaboard. Defendant denied the existence of such a contract, and insisted his only obligation was to accept the bananas at Council Bluffs, and pay the purchase price, if they arrived in a green and merchantable condition. They did not so arrive, according to his estimate of their condition, but, on the contrary, as he alleges, Avere ripe and unmerchantable. He therefore refused to accept the consignment. Plaintiff disclaimed OAvnership of the fruit at Council Bluffs, and it Avas sold by the carrier to pay the freight charges. The position of each party is disclosed by facts fully and formally pleaded. Defendant Avas a wholesale fruit dealer at Council Bluffs. Plaintiff was an importer of tropical fruits, and its method .of doing business is partially described in its brief as follows: “The fruit was brought by steamships from tropical countries to the port
About 5 o’clock on the morning of November 7, 1906, the shipment in question left New Orleans for the north on the Illinois Central Railroad, but at that time the bill of lading did not disclose the destination of the car or the name of the consignee. Knowing the car was “rolling,”
“In conformity with similar announcements heretofore made, the Fruit Dispatch Company has established the following uniform conditions to govern all purchases of bananas and other fruit from it.
“1. All bananas and fruit are sold by the Dispatch Company delivered f. o. b. freight cars at the seabpard, with the exception of special sales provided for in clause No. 11 hereof. After delivery to the carrier at the seaboard all bananas and fruit are at the sole risk of the purchaser. Every order for or sale of bananas or fruit given or made after the same shall have been shipped at the seaboard, shall relate back to the time of such shipment and shall have the same force and effect in every respect as if given or made prior to such shipment.
“2. The certificate of the official weigher, respecting the weight of the bananas or fruit in any given, car upon shipment at the seaboard, shall be final and conclusive upon both parties.
“3. Unless the contrary is clearly specified in writing,*825 every order for bananas or frnit given to tbe Dispatch Company shall be understood to contain the request that a messenger be furnished to accompany the bananas or fruit purchased for the benefit of the purchaser. The Dispatch Company at all times shall have the option of providing such messenger or not. Whenever a messenger shall accompany a car or cars, he will be instructed to look after the interests of the purchasers, and accordingly will be subject to all instructions of the purchasers respecting their bananas or fruit respectively. In the absence of such instructions, the messenger will conform to the general rules .and regulations established by the Dispatch Company, and to such special orders as the Dispatch Company may give on behalf of the purchaser in any case. The receipt, certificate, or statement of a. messenger respecting the amount, quality, and condition of the fruit which he is to accompany, given in writing and signed by him at the time of shipment at the seaboard, shall be conclusive and final as to all matters therein contained, upon both the Dispatch Company and the purchaser.
“4. Any purchaser may furnish his own messenger to accompany his bananas or fruit, and every such messenger shall have authority to accept bananas and fruit for the purchaser, and all receipts and statements respecting such bananas and fruit, signed by such messenger, shall be binding upon the purchaser.
“5. The Dispatch Company will employ and pay all messengers furnished by it as aforesaid for account of the respective purchasers, and hereby guarantees that the charges to the purchasers for the services of such messengers shall not exceed one dollar per car to the respective diverting points established by the Dispatch Company, and beyond such diverting points shall not exceed five dollars a day and extra railroad fares, any fraction of a day in excess of twelve hours being counted a full day. Messengers may be paid by the Dispatch Company, and such payments shall be reimbursed by the*826 purchasers upon receipt of bills rendered therefor, but the failure of the Dispatch Company to render any such bills or to collect such payments shall not impair or affect any of the terms or conditions hereof. It is further expressly understood and agreed that, without increasing the cost of messengers to the purchasers above the amounts hereinbefore stated, the Dispatch Company may, for the purpose of having suitable messengers ready for service at all times, pay the messengers greater amounts, or may employ them upon salary.
“6. The purchasers shall bear all loss on account of damage or deterioration of bananas and fruit after shipment at the seaboard, arising from any cause whatsoever, and Avithout altering or affecting this provision, the messengers or the Dispatch Company may place any cars of fruit in any store-house or shelter, for the purpose of regulating the temperature or ventilation thereof, or for any other purpose, and in so doing, the Dispatch Company may assume the custody of any bananas or fruit, either directly or through instructions to any messenger, from the carriers temporarily without any liability to the Dispatch Company for anything that may happen or be done to the bananas or fruit in consequence thereof.
“7. The Dispatch Company agrees properly to investigate every claim made as hereinafter provided and will make prompt and fair adjustment thereof, if found meritorious. The purchaser, however, shall in every instance pay to the Dispatch Company the full amount of invoice Avithout any deduction Avhatever, and shall abide by the decision of the Dispatch Company with respect to any claim, and accept in full satisfaction thereof any allowance made by the Dispatch Company. No such allowance, for whatever cause made, shall have the effect of impairing or affecting any of the provisions hereof, nor shall it constitute any precedent for any future claim.
“8. Notice of every claim against the Dispatch Company must be given to its resident nianager at the place Avhere the order was given, immediately after the arrival at its*827 destination of tlie car containing the bananas or fruit complained of, and a full statement in writing of the basis of every such claim must be filed with such resident manager within twenty-four hours thereafter. In default of such notice or written statement, the Dispatch Company shall have the option of disregarding any such claim.
“9. All notices of claims filed with such resident managers will be forwarded to the Dispatch Company in New York city for investigation and decision. No representation or agreement made by any resident manager as to the rejection or allowance of any claim will be binding upon the Dispatch Company.
“10. Purchasers shall be bound to pay all freight and other charges from shipment at the seaboard unless a special arrangement shall be made respecting the payment of such freight in any given case, but the assumption or payment of freight by the Dispatch Company shall not affect the delivery at the seaboard as herein provided.
“11. Special s.ales may be made, after arrival of bananas or fruit at the final destination, to purchasers personally inspecting and accepting the same on the spot.
“12. Every order given to or for the Dispatch Company whether by telephone, telegraph, in writing, or otherwise, shall be regarded as being made under and subject to the terms and conditions herein contained. Every purchase from the Dispatch Company of bananas or fruit, and every sale thereof by it, shall be upon and subject to all the terms, conditions, and provisions herein contained in every respect, unless waived in a writing signed by the president or general manager of the Dispatch Company, it being expressly stated and understood that no officer, employee, or representative of the Dispatch Company, except only the president or the general manager, has any authority to make any contract or sale of bananas or fruit except upon and subject to the said terms, conditions and provisions.
*828 “Fruit Dispatch Company,
“By John Evans, General Manager. “Approved: A. W. Preston, President.”
“Receipt.
“6-28,1905.
“Received from the Fruit Dispatch Company Code Book . No. 605, containing the terms, conditions, and provisions governing purchases from and sales by the Fruit Dispatch Company. The undersigned hereby assents to the same and notifies and directs the Fruit Dispatch Company that every order hereafter given to it or to any of its officers or employees, for the purchase of bananas or fruit, by the undersigned, shall be deemed and construed to refer to and contain the 'Uniform Conditions Governing Sales,’ as set forth in the said code book, on pages 55 to 59 thereof, as part of the terms of such order, without any further reference, and hereby further and expressly agrees with the Fruit Dispatch Company that, in consideration of the acceptance from the undersigned of any order or orders for bananas or fruit, all sales of bananas and fruit from the Fruit Dispatch Company to the. undersigned, shall be under and subject to the said terms, conditions, and provisions in every respect. The undersigned agrees to return the said code book at any time on demand. Witness the hand and seal of the undersigned the day and year above written. Signed, sealed and delivered in our presence. (Two witnesses.) B. Gilinsky.”
Plaintiff received the foregoing receipt by mail, when it was detached from the matter preceding it, but a copy in blank follows the formal conditions of sale in the back of the code book introduced in evidence. By definite provisions in paragraph 12, the terms of the contract were madé applicable to all sales to defendant, and could not be changed or waived except by a writing signed by the president or general manager. There is no proof of such a writing. Defendant insists, however, that he is not bound by any of the terms of the document quoted, and
The position that defendant is not bound by the contract because its terms Avere not made a part of his receipt is also untenable. Parties may make a contract in
Defendant further insists that he never saw the letters; that he did not know of the existence of the contract when he was sued; that he never signed the receipt; that he did not authorize any one to sign it for him, and that his name was used without authority. Defendant’s name was signed to the receipt by his son Sam, but it is urged that the latter acted without knowing the contents of the code book and without the knowledge or consent of his father. That defendant was bound by the act of his son was shown by a general verdict, as well as by a special finding. The trial court submitted to the jury this interrogatory: “Do you find from the evidence that the contract contained in the code book and the receipt for the same were executed by the defendant through his son, Sam Gil insky, as his agent?” “Yes” was the answer of the jury, and it settles that question, if the finding is supported by sufficient evidence. Defendant could not read or write the English language. Much of his correspondence was entrusted to his sop, who was a high school graduate. Defendant placed him in his store, where he was permitted to open and answer mail, and where he participated in his father’s business. In his own brief defendant says: “Sam was a clerk in his father’s place of business, buying a car of fruit now and then, and once did write to the Dispatch Company that he was authorized to do some buying.” In the position in which defendant placed his son, the latter received and answered a letter containing a demand for the receipt for the code book. In that position he signed
The original contract in writing and the oral order for the car of fruit Avere Iowa contracts, and to defeat a recovery defendant pleaded, and now urges, the Iowa statute of frauds as.a defense. He also insists there Avas no delivery to him. These points will be considered together. Under the statute of Iowa contracts Avliich must be in Avriting and signed by the party charged include “those in
The statute and opinion cited were introduced in evidence, and control the decision on this branch of the defense. The name of defendant as consignee was inserted in the bill of lading November 8,1906, and it was promptly mailed to him upon receipt of his order. A messenger who was in charge of the car testified the bananas on that date were green and in good condition, and that the temperature of the car was properly regulated. His report was
The general rule that, in absence of an agreement to the contrary, a delivery to the carrier is a delivery to the consignee has been announced by this court. Butts v.
Some of the instructions are criticised as conflicting, and others as containing repetitions prejudicial to defendant. Other rulings of the court in giving and in refusing-instructions are also assigned as error. A discussion of these questions separately would make the opinion too long, but all such rulings have been carefully considered in connection Avith tlie entire charge. The result of the investigation is that no error requiring a reversal of the judgment of the trial court has been found.
Affirmed.