Edwards v. Hastings Distributing Co.

Dean, J. Plaintiff sued and recovered a verdict and judgment for $989.79 under a contract for the sale of a quantity of potatoes to the defendant company, which was engaged in the produce business at Hastings. Defendant appealed. October 16, 1919, plaintiff wired this offer to defendant: “Offer 5 cars very fine U. S. No. 1 Red Kings sacked, two fifty-five, delivered. May have one or two cars fancy No. 1 Whites. Not sure. This stock all comes from one man and will be graded and cleaned in nice shape. May have load Gering account car shortage.” Defendant wired this reply: “Take five cars Kings sacked your price. You have our confidence as a potato man.” Within a week after the exchange of the telegrams, but on different days, three cars of potatoes were shipped to defendant. The first car was paid by defendant’s check. Plaintiff drew on defendant for the second and third cars, as delivered, and each draft was paid on arrival at destination. A few days thereafter a fourth car was shipped to defendant. The bill of lading was accompanied -by a draft, but it was protested and returned unpaid. In about ten' days another draft for' the same car ■was returned unpaid and subsequently a third draft was dishonored. The suit followed. Defendant pleaded that none of the four cars were of the variety of potatoes which were represented in the contract, and further pleaded that the potatoes were so decayed, unsound, frosted, and unmarketable that there was a loss of about $250 on the first and fourth cars because of such defects, and that because of plaintiff’s failure to deliver the remaining three cars it lost $1,260 in profits. [623] Defendant assigns as error the refusal to admit certain evidence offered.- But no reference is made in the brief to the pages or to the places in the record where such evidence may be found. Supreme court rule 12d (94 Neb. XI) provides that the assignments of alleged error which are mentioned in a brief without reference to the pages in the abstract or bill of exceptions where the challenged ruling may be found will be deemed to have been abandoned. Mensinger v. Ainsworth Light & Power Co., 94 Neb. 465. Defendant introduced evidence tending to support the allegations of its answer with respect to the four • cars which Avere delivered. The evidence introduced by plaintiff was to the contrary. No good purpose Avould be served by taking up space to discuss the evidence in de-. tail. It is sufficient to say that it relates to disputed questions of fact which were submitted to and decided by the jury. We find, hoAvever, there is sufficient evidence to support the Arerdict, so that it Avill not be disturbed unless errors of laAv are pointed out and discussed which require a reversal of the judgment.. It Avill be noted that there is nothing in the contract— the telegrams constituting the contract — Avhich definitely fixed the time of payment. In such case the rule in this state is that, when the time of payment is not fixed, a cash payment is contemplated. In Baker v. McDonald, 74 Neb. 595, we said: “Where the time of payment is not fixed by the contract of sale, the law presumes a cash sale, and, while title may have passed to the buyer, he is not entitled to possession until the full purchase price has been paid or tendered.” In Behrends v. Beyschlag, 50 Neb. 304, Avhere the time of payment was not fixed, it was held that delivery and payment Avere to be concurrent acts. In Williston, Sales, 805, sec. 467, it is said: “If it be granted that upon a true construction a contract is divisible, the obligations of the buyer and seller in regard to any one instalment are for the most part to be deter [624] mined as if that instalment constituted the whole contract. Thus, if no time is fixed showing an intention inconsistent with concurrent performance, the seller will not be bound to deliver the instalment until the buyer pays the price, and, conversely, the buyer will not be bound to pay the price unless the seller delivers the goods.” There is no ambiguity in the terms of the contract. True, it is silent with respect to the time of payment, but that feature is not important in view of the interpretation of the contract by the parties themselves, three cars having been. separately paid for upon delivery. The only reasonable inference to be drawn from the conduct of the parties, with respect to time of payment, is that both of them contemplated that each car should be paid for upon delivery. In Cady v. Travelers Ins. Co., 93 Neb. 634, it is said: “The practical interpretation given their contracts by the parties to them while they are engaged in their performance, and before any controversy has arisen concerning them, is one of the best indications of their true intent, and the courts will ordinarily enforce such construction.” Under the law and the facts before us, plaintiff was dearly within his rights. The conclusion is that re versible error has not been shown. The judgment is Affirmed.