91 Neb. 298 | Neb. | 1912
Action by plaintiff in the district court for Douglas county to recover for metal signs manufactured and delivered by it to defendant under a written order. Verdict and judgment for defendant, and plaintiff appeals.
On November 19, 1908, defendant signed and delivered to one Brown, a member of the ñrm of Frederickson, Brown & Chesney, plaintiff’s agents at Minneapolis, an order for
The petition alleges the sale and delivery of the signs, the refusal of the defendant to receive the same, the amount due, and prays judgment. The answer denies all allegations of the petition not admitted; admits that he entered into the contract, but denies that the copy set out is a true copy; and alleges: “That prior to the time of the writing of said alleged contract, defendant had purchased from plaintiff other signs of a similar character, and one T. M. Brown, who was of the firm of Frederick, Brown & Chesney, the agent of the plaintiff, to induce the defendant to give Mm an order for said 500 signs, said to defendant that if he, the defendant, would leave it entirely to the Meek Company it would furnish to him 500 signs for $200, which in every respect would be as good and attractive as the ones that had been previously sold by the plaintiff to the defendant, and that said signs should be satisfactory to the defendant; that the signs that had been purchased by him from plaintiff prior to said time were first-class and artistic, whereas the signs sued for were botches and almost worthless; that'there was neither art, nor good workmanship, nor taste exhibited in any of said signs; that when said signs came he refused to accept them and so notified the plaintiff.” The
On behalf of plaintiff it was shown by the witness Selby that he had been treasurer of plaintiff since its organization; that the business of plaintiff was that of manufacturing all kinds of advertising goods, including metal signs; that it received defendant’s order on or about November 19, 1908, through their agents at Minneapolis; that the order was duly entered on the books of the company and filled by them, and shipped on December 8, 1908; that he had examined the signs before they were shipped, and that they were in first-class condition and made exactly in accordance with the order sent them; “that they used their best judgment in regard to the display, and that they were first-class in every respect, both as regards the lithographing and lettering.” The witness Townsend testified that lie was in charge of the metal sign department of plaintiff; that he recalled the Rohlff order; that the order was turned- over to his department, and filled; that he personally examined the signs before they were packed and found that they were first-class in every respect and very attractive; “and as there were no instructions with the order as to the character of the lettering which should be done,' the plaintiff followed its own judgment and printed the advertisement in the usual way with a shade of green in harmony with the color of the picture used; that a different advertisement could have been put on, had it been ordered, but that it was left to him and he followed his own best judgment as to what he thought would please the customer, and that the signs were made in exact accordance with the terms of the order, and that they were duly shipped to the defendant herein and that he had accepted the same, and that the only complaint received by the plaintiff from the defendant was that the printing of the signs was not according
Defendant testified that he had been in the wholesale liquor business about 15 years, and had previous to this time ordered other signs from plaintiff; that he signed the order, copy of which was attached-to plaintiff’s deposition ; that Mr. Brown, representing plaintiff, called upon him and showed him the sign in controversy without any letters on it and wanted to know if he couldn’t sell it to him; that he agreed to buy it, “if he could have some nice satisfactory advertising on it and give him as nice letters as he had on the other signs, and he gave him the wording to put on it and suggested to get a good flashy sign; that, at the suggestion of Mr. Brown, he followed his advice and left it entirely to the artist.” Defendant then offered in evidence the .sign which he liad previously purchased of plaintiff, and also one of the signs involved in the suit, which he had. had altered by a sign painter in Omaha. He further testified that he had been in the saloon business for 23 years, was somewhat familiar with the methods of advertising, felt competent to examine cards, pictures, etc., and to state whether they were good advertising or not, and that the sign furnished by plaintiff “was bad advertising, in that it was dull, not a bit attractive, looked like a rubber stamp job, and not attractive to the
The above is almost a complete transcript of the evidence set out in the abstract, and the most that can be said for it is that it shows that the judgment of defendant and his witnesses as to the artistic display of the lettering upon the sign (which, it is stated, was the picture of a beautiful woman) does not tally with the judgment of the plaintiff’s officials and employees, who manufactured
The evidence, in our judgment, utterly fails to establish any defense to plaintiff's claim, and its motion for a directed verdict, at the conclusion of the trial, should have been sustained. Having reached this conclusion, a consideration of the other point assigned in plaintiffs brief, and discussed, by the parties, is unnecessary.
The judgment of the district court is reversed and the cause remanded, with instructions to render judgment for the amount of plaintiffs claim, with interest.
Reversed.