Kessler v. Smith

Supreme Court of Minnesota

Kessler v. Smith

44 N.W. 794, 42 Minn. 494, 1890 Minn. LEXIS 73

CourtSupreme Court of Minnesota

DecidedFebruary 10, 1890

StatusPublished

Cited by17 cases

This text of 44 N.W. 794 (Kessler v. Smith) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kessler v. Smith, 44 N.W. 794, 42 Minn. 494, 1890 Minn. LEXIS 73 (Mich. 1890).

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Opinion

Vanderburgh, J.

One of the plaintiffs solicited and received the following order for the sale and delivery of goods, made and signed by the defendant: “St. Paul, May 5, ’87. Messrs. George A. Kessler & Co., New York — Gents: Please ship me following goods via rail: Released 5 bbls. U. S. Monogram Rye, at $4.00 per gal. Rebate of 25 [495]*495cents per gal. Terms, bill dated June 1st, less 4 per cent. — 30 days. Whisky to be shipped not before June 1st. (Freight.) And obligo, respectfully, Jno. F. Smith.” In pursuance of the order, the plaintiffs thereafter, on June 2d, shipped the goods, as ordered, to the defendant at St. Paul, and sent him the account and bill of lading therefor. They were also received in due course at the freight-house of the carrier, in St. Paul, and the defendant duly notified of their receipt, and the goods are still there.

1. Plaintiffs’ procuring and receiving the order was an acceptance. It thereupon became an agreement for the purchase of the goods, binding upon the defendant; and it was sufficient, within the statute "of frauds, that it was signed by him as the party to be charged. It was not necessary that plaintiffs’ acceptance should be signified by writing. There must be a proposition by one party accepted by the other, which may be by some appropriate act. White v. Corlies, 46 N. Y. 467; Howard v. Daly, 61 N Y. 362.

2. The defendant proposed to prove that when the contract was made it was agreed that defendant might, at his option, countermand the order before delivery of the goods. The offer was properly rejected. The evidence was clearly inadmissible. The parties could not be permitted to vary the terms of the written agreement by showing that there were other conditions, agreed on at the time, qualifying the terms of the contract.

There was a sufficient delivery, and the plaintiffs were entitled to recover. Janney v. Sleeper, 30 Minn. 473, (16 N. W. Rep. 365.) The case is “on all fours” with Wemple v. Knopf, 15 Minn. 355, (440,) and nothing need be added to what is there said.

Order affirmed.

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Vanderburgh, J.

One of the plaintiffs solicited and received the following order for the sale and delivery of goods, made and signed by the defendant: “St. Paul, May 5, ’87. Messrs. George A. Kessler & Co., New York — Gents: Please ship me following goods via rail: Released 5 bbls. U. S. Monogram Rye, at $4.00 per gal. Rebate of 25 [495]*495cents per gal. Terms, bill dated June 1st, less 4 per cent. — 30 days. Whisky to be shipped not before June 1st. (Freight.) And obligo, respectfully, Jno. F. Smith.” In pursuance of the order, the plaintiffs thereafter, on June 2d, shipped the goods, as ordered, to the defendant at St. Paul, and sent him the account and bill of lading therefor. They were also received in due course at the freight-house of the carrier, in St. Paul, and the defendant duly notified of their receipt, and the goods are still there.

1. Plaintiffs’ procuring and receiving the order was an acceptance. It thereupon became an agreement for the purchase of the goods, binding upon the defendant; and it was sufficient, within the statute "of frauds, that it was signed by him as the party to be charged. It was not necessary that plaintiffs’ acceptance should be signified by writing. There must be a proposition by one party accepted by the other, which may be by some appropriate act. White v. Corlies, 46 N. Y. 467; Howard v. Daly, 61 N Y. 362.

2. The defendant proposed to prove that when the contract was made it was agreed that defendant might, at his option, countermand the order before delivery of the goods. The offer was properly rejected. The evidence was clearly inadmissible. The parties could not be permitted to vary the terms of the written agreement by showing that there were other conditions, agreed on at the time, qualifying the terms of the contract.

There was a sufficient delivery, and the plaintiffs were entitled to recover. Janney v. Sleeper, 30 Minn. 473, (16 N. W. Rep. 365.) The case is “on all fours” with Wemple v. Knopf, 15 Minn. 355, (440,) and nothing need be added to what is there said.

Order affirmed.

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44 N.W. 794, 42 Minn. 494, 1890 Minn. LEXIS 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kessler-v-smith-minn-1890.

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