Ennis Brown Co. v. W. S. Hurst & Co.

In his petition for a rehearing appellant calls attention to one point urged in the opening brief which was not noticed in the opinion, namely, that a custom and usage prevailed between plaintiff and defendant and between plaintiff and other persons in Oregon with whom it had dealings, to the effect that the sale was not complete until plaintiff’s acceptance of the seller’s offer was confirmed by the latter. There was evidence tending to establish the custom as claimed by defendant, but there was evidence the other way sufficient to produce a conflict. Besides, if there had been a usage between the parties in former dealings it could be disregarded or waived by them in any particular transaction. We think the evidence in the present case shows that both parties treated the order as accepted without further confirmation on the part of either.

We have re-examined the other questions and do not find error in our former conclusions. We think appellant disposed, in his argument, to overlook the force of the rule where the evidence in the ease is conflicting.

Rehearing denied.

Buckles, J., and McLaughlin, J., concurred.

This is an action for damages growing out of a contract alleged to have been entered into between the plaintiff, residing in Sacramento, California, and defendant, residing in Aurora, Oregon, for the delivery by defendant to plaintiff of certain two carloads of potatoes. The complaint alleges that on or about the fifteenth day of April, 1901, defendant entered into a contract in writing with plaintiff whereby defendant sold to plaintiff and plaintiff purchased from defendant two carloads of potatoes at the agreed price of fifty-five cents per hundred pounds, “which said two carloads of potatoes were to be within a week thereafter delivered by defendant to plaintiff.” The complaint further alleges demand for the delivery and neglect and failure upon the part of defendant tó comply therewith, resulting to plaintiff’s damage in the sum claimed in the complaint. There was a demurrer interposed by defendant on the ground of insufficiency of facts, which was overruled, and defendant answered, denying specifically the material allegations of the complaint. As a separate answer defendant alleged that he was at all times mentioned in the complaint absent from and was a nonresident of the…