165 Iowa 398 | Iowa | 1914
It appears from the record in this case that the plaintiff is a copartnership, doing business in Sioux City, Iowa, under the firm name of Petroleum Products Distributing Company; that the defendants are engaged as wholesalers of oils at Alton, Iowa; that on the 7th day of March, 1911, the defendants ordered from the plaintiff two car loads of gasoline through one R. R. Hicks, one of plaintiff’s agelits, and executed and delivered to said Hicks for the plaintiff, the following written order therefor: “Petroleum Products Distributing Co., 828 First Natl. Bank Bldg., Chicago. 520
On the 4th day of April, 1911, defendants ordered of the plaintiff one tank car of gasoline through plaintiff’s agent, H. B. Sawyer, and executed and delivered to the plaintiff a written order therefor as follows: “Petroleum Products Distributing Co., 828 First National Bank Building, Chicago. 520 Farmers Loan and Trust Building, Sioux City, Iowa. 01611. Ship Alton Tank Line, Town Alton, State Iowa. Route 1 tank car gas. 63 gr. Price 7% <js f. o. b. Ref. Ship April 25. From Southern Ref. Ex. D. Not subject to cancellation. Nothing recognized except what is embodied in this order. Jas. A. Coad, Purchaser. TI. B. Sawyer, Salesman. P. S. R. 16.”
The plaintiff claims that acting under the first order and in pursuance of said order, it caused to be shipped to the defendants, at Alton, Iowa, 16,067 gallons of gasoline in the month of April, 1911, and that the same arrived in Alton during said month; that in pursuance to the second order, and in fulfillment thereof, it shipped to the defendants at Alton, Iowa, during the month of April, 1911, 8,042 gallons of gasoline, which arrived in Alton during said month. Plaintiff claims that there is due it, on account of said shipments, the sum of $2,116.11, with 6 per cent, interest from the 1st day of June, 1911. Plaintiff further says that the first order was to be delivered at nine cents per gallon and the second order at seven and one-half cents per gallon.
This petition was filed on the 22d day of August, 1911. On the 4th day of September, 1911, the defendants filed their answer, in which they admit that plaintiff is a partnership as alleged. Admit that James A. Coad executed the order set out in plaintiff’s petition, but aver that plaintiff had never,
First. There is no sufficient evidence that the plaintiff shipped the gasoline in controversy to the defendants.
It appears that the Indian Refining Company received pay for the oil furnished by it from the Keystone Oil & Manufacturing Company; that the oil furnished by the South Western Refining Company, to fill the second order, was also paid for by the Keystone Oil & Manufacturing Company; that the Keystone Oil & Manufacturing Company charged the amount, so paid by it, to the plaintiff, from which it appears that the orders were filled as required by the contract; that they were filled by the plaintiff, acting through others; that there was no assignment of the contract, or of plaintiff’s obligation to fill the contract. It appears that it merely fulfilled its contract, through the agency of others. Qui facit per alium facit per se.
It is next contended by the appellant that the plaintiff never accepted the orders, sued on, given by the defendants.
Hilliard on Sales, section 20, says: “A proposal or offer, therefore, must, in some way, be accepted to constitute a sale.”
These are elementary principles and need no citation of eases to support them. They have been long recognized in' this state as elementary.
Acceptance of a contract may be proven by facts or circumstances, or by expressed words of acceptance. It may be shown by proving acts done, on the faith of the order, such as indicate an acceptance of the terms of the order. This may be shown by the shipment of the goods ordered. There is no evidence in this record that the defendants, after signing and delivering to the plaintiff the order in question, ever rescinded, or attempted to rescind, or cancel the orders. Nor at the time the goods were delivered at Alton, did they indi
There was no specific direction in the order as to the point, in Alton, at which the oil should be delivered to defendants. Nor is there any evidence showing that the defendants gave any specific directions to the plaintiff as to the point at which it should be delivered other than Alton, Iowa. It appears that it was delivered at Alton, Iowa; that the defendants made test of it there and rejected it, on the ground that it was not of the gravity required by the contract, though it appears this objection was not communicated to the plaintiff until some time afterwards; that the only further objection made was in the telegrams, and that was not as to the point of delivery, nor the time of delivery, nor the place of delivery, but that they could use but one car of sixty-eight gasoline; that they desired crude oil, straight run from Pennsylvania, claiming that that was all their trade demanded, and that was all they could use.
Some objection is urged by appellant to the instructions given by the court, and it is claimed that the court did not fully and clearly instruct the jury in respect to the claims made, and defenses interposed by defendants, and it is contended that the court said to the jury that if the plaintiff satisfied them, by a preponderance of the evidence, that it shipped to the defendants the gasoline, in compliance with the written orders, then the plaintiff would be entitled to recover, providing the gasoline was of the character required by the orders.
It is claimed that the evidence does not show, and there is no evidence to show, that the plaintiff shipped the gasoline. This complaint is not well taken. It was left to the jury to determine whether the plaintiff shipped the gasoline. As hereinbefore stated, the shipping of the gasoline to the defendants,
The only affirmative defense made by the defendants was involved in the statement that the gasoline was not of the quality ordered. This question was fully and fairly submitted to the jury in the fifth paragraph of the instructions, and the jury therein were told that, if they found that the gasoline was not of the character and quality specified in the order, their verdict should be for the defendants.
The whole complaint of the defendants as to the manner of the trial, the sufficiency of the evidence, and the instructions given by the court, seems to rest upon the thought that these orders were simply offers on the part of the defendants, and that the evidence does not show that they were accepted by the plaintiff, thereby making a binding contract; that it does not appear that the oil was shipped by the plaintiff in pursuance of the orders; and the further controversy that the orders were assigned, or transferred by the plaintiff to others, without
We think all these questions are disposed of in what has been heretofore said, and the ease as made and submitted fully meets the defenses presented by defendant’s answer.
The jury were told, and rightly so, that the plaintiff was entitled to recover, if at all, for 16,067 gallons at nine cents a gallon and 8,042 gallons at seven and one-half cents per gallon. 16,067 gallons at nine cents a gallon amounts to $1,446.03, and 8,042 gallons at seven and one-half cents a gallon amounts to $603.15, which makes a total of $2,049.18, and this the plaintiff was entitled to recover with 6 per cent, interest from June 1, 1911, to November 20,1912. This makes $2,229.83, the amount for which judgment should, in fact, have been entered, and the judgment is modified to this extent. Plaintiff is entitled to judgment on the verdict for $2,229.83 with 6 per cent, interest from the date of the entry of the judgment.
Thus modified, the ease is affirmed. — Modified and Affirmed.