71 N.W. 136 | N.D. | 1897
This action was in claim and delivery, and involved the possession of a certain steam threshing engine. The case was tried to the court; judgment for defendants; and plaintiff appeals. The case is here for trial de novo. The facts as we
When the machinery forwarded by plaintiff for Spearing reached Hillsboro, Spearing refused to receive the same, except conditionally upon trial, in accordance with what he swears was the oral contract with the general agent. Plaintiff claims that the general agent had no authority to make such contract, as Spearing well knew, by direction to agents printed upon the contract which he had signed. We may grant that to be true. Nevertheless, the fact remains that Spearing refused to receive the outfit upon any other terms than upon trial. If the contract that he had signed and left with the general agent had been in fact delivered, so as to become operative, then this refusal was a direct breach of such contract. Such contact was executory,
The judgment of the District Court is made the judgment of this court, and will be enforced accordingly.
Affirmed.