Francis v. Merkley

BURNETT, J.

Plaintiff brought this action to recover the value of a C. L. Best 75 horse-power tractor and one set of John Deere plows, which he claims to have sold to the defendant, and he had judgment for the sum of $1,995, from which judgment the appeal has been taken.

Appellant states that the “appeal is taken upon the following grounds: 1. That the arrangement between plaintiff and defendant and the delivery of the memorandum was contingent on Davenport doing sufficient work under his contract with the defendant to entitle Davenport to a payment of $2,500, the agreed value of the tractor, and that the

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•finding of the court to the contrary was against the weight of evidence. 2. That it was conclusively proved at the trial that the tractor was not delivered to the defendant hut was delivered to Davenport. 3. That the plaintiff elected to rescind the contract between himself and defendant.”

As to the first of these the statement by appellant is sufficient to condemn it. He claims only that the finding is against the weight of evidence, thereby implying that there was substantial evidence to support it. Indeed, in elaborating the point he admits that “the evidence of the plaintiff, standing by itself, justified the court in finding that the memorandum signed by Merkley constituted an agreement by the plaintiff to sell and an agreement by the defendant to purchase, and that it contained the entire arrangement between the parties,” but the contention is that this is contradicted by Davenport and the defendant. Appellant seems to have forgotten the well-established rule that must govern an appellate court where there is a substantial conflict in the evidence. Nevertheless, to show how utterly baseless is this first ground we may recite the important facts upon which said finding was based. It was admitted by defendant that he executed a written memorandum as follows:

“This is to certify that I have this day sold 1000 sacks of barley to G-. C. Francis at $2.50 per sack same to be allowed on the purchase of a G. L. Best (75 h. p.) and set of John Deere plows (10 plows) on basis of $2500 as purchase price of said implements.

“(Signed) A. A. Merkley.”