105 Neb. 20 | Neb. | 1920
This action is to recover damages for the failure of the defendant, L. W. Pinkham, to deliver 55 tons of hay under the terms of a written instrument purporting to be an agreement on his part to sell and deliver that quantity of hay to Leypoldt & Pennington, whose rights under the contract they afterwards assigned to the plaintiff. Hjalmar Olson was also made a defendant, but was not really a party in interest. The verdict and judgment were for the defendants, and plaintiff appeals.
The defendant Pinkham was represented in the transaction, by Olson. Pennington, a hay buyer, was at the Olson farm when the subject of buying the Pinkham hay was brought up, and Olson said he would go to the house and telephone Pinkham about it. After the conversation over the telephone, Olson and Pennington went to Kearney, where the instrument sued upon was drawn up, in duplicate, and signed by Olson on behalf of Pinkham. It recites that Pinkham thereby sold and transferred to Leypoldt & Pennington the 55 tons of-hay in question for $8.50 a ton, and that it was to be delivered by Pink-ham within 30 days “on board of cars at siding at Min-den;” that $50 had been paid upon the purchase price, the remainder to be paid “when said hay has been delivered as aforesaid to the satisfaction of said Leypoldt & Pennington.”
The negotiations took place and the instrument was signed on October 17, 1916, and on November 7 the con
The plaintiff in its petition sets up the contract and the payment of $50 upon it, alleges the defendant’s failure and refusal to deliver, and that, at the time it should have been delivered, it was worth $13.50 a ton, and prays for damages equivalent to the increase in the price of the hay, together with the sum of $50, advance payment upon the contract.
Among the defenses interposed by the defendant Pink-ham was the following: That, while Olson was authorized to contraqt, as agent for Pinkham, for the sale of the hay, his authority had been expressly limited to selling it only in case the buyer should agree to procure-from the railroad company the cars < necessary for its shipment, and only upon condition that Pinkham should be relieved of any obligation to furnish cars; that such limitation was expressly insisted upon in the telephone conversation in which Pinkham authorized Olson to act as his agent in selling the hay; that this condition was communicated by Olson to Pennington before the contract was signed- and that therefore' the defendant was under no obligation to deliver the hay until cars were furnished by the plaintiff, and plaintiff was not entitled to take advantage of any technical interpretation of the words “on board of cars” in the contract, which might ordinarily impose upon the defendant the duty of furnishing cars.
To sustain this defense the defendant offered, and the * court received, over the plaintiff’s objections, the testi
The plaintiff insists that to permit the defendant to show a prior or contemporaneous oral agreement, shifting from defendant to the plaintiff .the duty of furnishing the cars, which, under the language of the contract, devolved, as a matter of law, upon the .defendant, is a violation of the rule that a written agreement cannot be varied or contradicted by parol.
In this case, however, the defense was that Olson’s authority to make any contract at all, on behalf of the defendant, with reference to the hay, was limited by a condition of which Pennington had knowledge before the contract was signed, that Pennington’s knowledge is binding upon the plaintiff, and that, since it is chargeable with knowledge that Olson had no general authority, but only such special and restricted authority as was directly communicated to Pennington at the time, the limitation upon Olson’s authority is binding upon the plaintiff. In such case the plaintiff could not rely upon a provision of the contract that it knew in advance was contrary to, or in excess of, the powers confided by the principal to the agent. Bradley & Co, v. Basta, 71 Neb. 169; 31 Cyc. 1329.
Except for the matter of the right of the plaintiff to recover the advance payment of $50'on the purchase price of the hay, which we shall presently consider, the assignments of error insisted upon by the plaintiff all relate to and are dependent upon the propriety of the ruling of the trial court in admitting the parol evidence complained of, and the conclusion reached upon that question disposes of the principal contentions raised upon this appeal.
The plaintiff pleaded the advance payment in its petition and prayed for judgment therefor. The defendant, in his answer, tendered that sum into court, “to be paid to the said Leypoldt & Pennington, or whichever one the court may find entitled to the same.” The defendant’s liability for the return of this money being thus conceded in the pleadings, the trial court, we think, should have required the jury to return a verdict for the plaintiff in the sum of $50, even though the jury found for the defendant with reference to the damages' claimed for breach of contract.
We accordingly recommend that, if, within 30 days, the defendant pay into the hands of the clerk of this court the sum of $50 for the use and benefit of the plaintiff, the judgment of the court below be affirmed, but that otherwise it be reversed and remanded.
For the reasons stated in the foregoing opinion, the judgment of the district court is affirmed, if, within 30 days, the defendant pay into the hands of
Affirmed on condition.