Engeldinger v. Stevens

112 N.W. 507, 132 Wis. 423, 1907 Wisc. LEXIS 140

• Court: Wisconsin Supreme Court
• Decided: June 20, 1907
• Status: Published

Opinion

Dodge, J.

Tbe delivery of merchandise in tbe manner and at tbe place specified in a written order constitutes an executed sale and warrants recovery of tbe price. Murphy v. Sagola L. Co. 125 Wis. 363, 103 N. W. 113; Fountain City D. Co. v. Peterson, 126 Wis. 512, 106 N. W. 17. Tbe findings declare such acts to have been performed by tbe plaintiff, and they are clearly supported by tbe evidence. Tbe right of tbe plaintiff to recover is therefore clear, unless cancellation of tbe order bad been communicated to him, or some one authorized to receive it on bis behalf, before such delivery. Washburn v. Fletcher, 42 Wis. 152; L. J. Mueller F. Co. v. Meiklejohn, 121 Wis. 605, 99 N. W. 332. Tbe trial court finds that the defendant’s attempted cancellation did not reach plaintiff until the day after the completed delivery f. o. b. Durand, and we are unable to discover that the evidence clearly, if at all, preponderates against such finding. Hence the right of recovery is established.

Error is assigned upon the rejection of certain evidence: First, what is characterized as evidence to show a custom among fuel dealers of buying light at the season of the year involved; also some other facts bearing perhaps upon the interest of the defendant in prompt shipment. Since there was no ambiguity in the order, nor in the act of the plaintiff in filling it, such evidence could have no materiality.

We find no other question in the record needing consideration and no error.affecting the correctness of the judgment.

By the Gouri. — Judgment affirmed.