82 Neb. 485 | Neb. | 1908
Plaintiff instituted this suit in the district court for Saline county to foreclose a chattel mortgage, and for judgment upon three promissory, notes described in said mortgage, which it claims were given to it by defendant Matej Kubieek in settlement for a traction engine and sundry attachments, which plaintiff claims said defend-. ant Matej Kubieek and his son, Joe Kubieek, had ordered from plaintiff on June 9, 1904, in a written order, which provided for the delivery of said engine and attachments on board the cars at Crete, Nebraska. The defendants allege substantially that within two weeks subsequent to the giving of such order, and before the same had been accepted by plaintiff, they countermanded said order, but that, regardless of such countermand, plaintiff shipped said engine to Crete; that when it arrived at Crete defendants refused to accept it; that thereupon plaintiff sent one of its representatives, one J. F. Hennessy, to Crete, to attempt to make 'delivery of such engine; that defendants refused to receive the engine; that after somewhat extended negotiations it was agreed between Hennessy and defendants that Hennessy was to . unload the engine and attachments, put them together, and deliver them to defendants on the farm of Matej Kubieek, about four and a half miles southwest of Crete; that, in consideration of that agreement, defendant Matej Kubieek
Plaintiff denies that Mr. Chambers ever made any such an agreement, and alleges that the only agreement he made was that, in consideration of the unfortunate circumstances, he would, as a matter of accommodation to defendants, and at plaintiff’s expense, restore the engine to its former condition as soon as possible, and that when this was done defendants were to go to Crete and get the engine. Plaintiff also denies that Hennessy ever made the agreement claimed by defendants about delivering the engine to defendants’ farm, and alleges that, if he did make such agreement, he had no authority so to do, and that plaintiff was not bound thereby. Plaintiff also al
The case was tried to the court, and a decree entered, in which the court found “for the defendants, and finds that the plaintiff has the property in controversy in its possession and ever has had, and the defendants or either of them never had possession thereof, and the foreclosure of the chattel mortgage in question is not plaintiff’s remedy,” and dismissed plaintiff’s action without prejudice.
The principal questions involved, and the ones upon which the case must turn, are: (1) Did the defendants countermand their order of June 9 in apt time? If so, then the shipping of the engine and attachments, as was done, was without authority on plaintiff’s part. (2) Did Hennessy agree to unload the engine and deliver it to defendants on defendants’ farm? (3) Did Hennessy have authority to make such an agreement. We will consider these questions in the order named.
The evidence fairly shows that Jelinek & Company were the local representatives of plaintiff at Crete, and that Hennessy was a general salesman for plaintiff. Hennessy visited Crete on June 8, 1904, and in company with one of the Jelineks, their local agent, started out to canvass the country adjacent thereto. They made a sale to one Parvlish on June 8, and on the morning of June 9 called at the home of the Kubiceks, and as a result of that call obtained the signatures of the two defendants to an order for the machinery in controArersy. This order expressly stipulated that it was not binding upon the plaintiff until accepted by plaintiff at its home office at Stillwater, Minnesota. Defendants claim and testify that after the order was signed, and just before he left, Hennessy told them they could have two weeks to think the matter over, and would have the right at any time Avithin such two weeks to countermand this order. In this they are corroborated by Mr. Jelinek. Plaintiff contends that no such permis
It will be observed that this letter bears date June 24, the day after the Kubiceks countermanded their order, but the writer of the letter testified that he dictated the letter on the day previous, viz., June 23, which would be on the same day that Mr. Kubicek countermanded the order. Counsel for defendants express considerable doubt as to the truthfulness of this testimony. That fact we do not have to determine, for the reason that it is immaterial whether the letter was dictated on the 23d, or even written on the 23d, as the evidence is uncontradicted that it was not signed and mailed until the 24th, one day after plaintiff had been notified of the countermanding of the order by the Kubiceks.. We think the law is well settled that “a mere uncommunicated purpose to accept an offer does not constitute an acceptance, and where parties are distant and the contract is to be made by correspondence, the writing of a letter or telegram containing a notice of
As to the second point, the Kubiceks both testified that, when Mr. Hennessy came to their home on the evening of the day prior to the day of the accident, they refused to receive the engine, and that, as one of them put it, “Hennessy took himself off.” On the next day Mr. Kubicek, Sr., went to Crete, arriving there early in the forenoon. After arriving there he had several interviews with Mr. Hennessy, at which one W. S. Chemlir acted as interpreter. Mr. Kubicek testifies that he persisted in his refusal to take the engine, but that finally it was agreed between himself and Mr. Hennessy that Hennessy was to unload the engine and deliver it to defendant on his farm, four and a half miles southwest of town; that, in accordance with and on the strength of that agreement, the papers were all prepared, and that he signed them at that time, but that the deal was not to be considered completed until Joe had signed the papers, which he told Hennessy Joe would do when the engine was delivered at the farm. One reason given by Mr. Kubicek why he insisted upon delivery at the farm was that he had had trouble once before by having an engine go through a bridge while it
This brings us to the third point, viz., did Hennessy have power to make this contract? It is urged by counsel for plaintiff that Hennessy was simply a salesman with authority to take orders, and that he had no authority beyond that. If so, why was he sent by plaintiff to Crete to represent plaintiff after the engine had arrived at that station? If the order had been properly accepted by plaintiff and was in full force and effect, then plaintiff had discharged its entire duty to defendants by shipping the engine to Crete, as by the terms of their order plaintiff
We do not deem it necessary to go into the details of what took place in the subsequent interviews between Mr. Chambers and the defendants. The uncontradicted evidence shows that plaintiff extricated the engine from the ditch, took it to Crete, attempted to restore it to its former condition, and furnished all necessary parts for so doing, and all at the expense and cost of plaintiff; that the ma
A number of minor questions are discussed in the briefs of counsel which we do not deem it necessary to consider.
We recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.