Shull v. New Birdsall Co.

Citations

• 15 S.D. 8
• 86 N.W. 654
• 1901 S.D. LEXIS 73

Syllabus

<p>1. Plaintiff ordered a threshing outfit of defendant to be paid for “at the time and place of delivery,” in part by a second hand outfit, and balance with notes. The order also provided that it was taken subject to the approval of defendant, and that no agent could bind defendant by any agreement preliminary to, collateral with, or additional to the contract as set out, or waive any condition thereof. The next day after giving the order to defendant’s agents, and ten days before it was approved, plaintiff delivered the second hand outfit to such agents, who immediately sold it. Owing to delay in shipment. plaintiff countermanded his order, and sued to recover the old outfit or its value. Held, that the delivery of the old outfit to defendant’s agents before the new outfit was delivered was a delivery to them personally, for which defendant was not responsible, since they had no actual or ostensible authority to receive it for defendant prior to the time stated in the order.</p> <p>2. Where plaintiff ordered a threshing outfit of defendant, to be paid for, at the time of delivery, in part by an old outfit, and balance in notes, and, before the order was accepted, delivered the old outfit to defendant’s agents, and one of the agents testified that defendant knew such machinery was traded in at the time the order was taken, or immediately after, and defendant’s secretary testified that they did not know the machinery had been delivered when the order was accepted, the question of defendant’s ratification- of its agents’ acts in receiving the machinery was for the jury.</p> <p>3. Where plaintiff ordered a threshing outfit of defendant, “to be delivered at once,” and defendant, on accepting the order, manufactured some special parts not on hand, and shipped the machine as soon as possible, but, owing to a subsequent misunderstanding, sent the machine elsewhere, and a few days later shipped a machine to plaintiff, which he refused to accept, the question whether the de