#### JOHNSTON BROS. CLAY WORKS, Appellant, v. O’CONNELL, et al., Respondents.

(183 N. W. 283.)

(File No. 4871.

Opinion filed June 2, 1921.)

1. Sales — Order for Silo Material “Size 20x30” — Subsequent Order for Different Size, and Cancelling Former Order — Acknowledgment of New Order as Cancelling Original, Non-shipment of Original Material, Effect of Consent to Cancellation,

One of three defendants composing the firm óf O. Bros., give plaintiff’s agent a written order for material for a silo denominated as size “20x30;” subsequently defendants, by O. Jr., gave said agent another order for a silo denominated as size “20x40,” which later order contained the statement. “This is to cancel former order for 20x30 silo;” still later the person giving the first order gave said salesman a third order for silo material denominated as size “16x40,” which later order contained the statement “to cancel order for 20x40 silo now in your office.” Later plaintiff acknowledged receipt of the latest order, which acknowledgment contained the statement “This cancels order 20x40.” The only material ever shipped by plaintiff was that described in the first order; conditions in all orders being identical. Defendant refused to pay therefor on ground that the order was rejected and that material arrived too late for use for the; year for which ordered. Held, that plaintiff’s contention that said acknowledgment of the last order was merely intended as an acknowledgment of the order received, and was not intended as an acceptance* of any attempted cancellation, is untenable; all the orders having been, taken by the same salesman, plaintiff’s agents, whose knowledge must be imputed to plaintiff; moreover, plaintiff never shipped the first order, thus clearly recognizing cancellation contained in the second order.

■ 2. Sales — Order for Material Accepted “Subject to Delays Due to-Contingencies! of Transportation, Strikes,” Etc. — Judicial Notice of Labor Conditions, Whether Court Will Take.

While trial court might take judicial notice of general labor conditions existing in 1919, it could not take notice that such condition interfered with plaintiff’s business. So held, in de>termining plaintiff’s right to recover for a shipment of material sent under an order which was accepted “subject to delays due to contingencies of transportation, strikes and otheT causes beyond our control,” vendee claiming the material arrived too-late for use in 1919.

Appeal from Circuit Court, Rake County. Hon. Rouis R. FpEEGER, Judge.

*233Action by William Johnston and another, co-partners under the name and style of Johnston Bros. Clay Works, against J. W. O’Connell, Elmer O’Connell and Walter O’Connell, to recover the price of certain silo material shipped by plaintiffs to defendants. From a judgment for defendants, and from an order denying a new trial, plaintiffs appeal.

Affirmed.

*Price & Burnquist,*and *Ira P. Blewitt,*for Appellant.

*Porter & Porter,*for Respondents.

WHITING, J.

Plaintiff sued to recover the selling price of certain silo material shipped defendants. The trial court directed a verdict for defendants. From judgment entered thereon and from order denying a new trial this appeal was taken.

The undisputed facts are in brief as follows: Plaintiff is a partnership, doing business at Clay works, Iowa. It manufactures and sells material for silos. On April i, 19x9, its salesmen procured from defendant J. W. O’Connell a written order for the material for a silo denominated as “size 20x30.” The order directed shipment to be made to the purchaser at Ramona, S. D. On April 24, 1919, the samle salesmen procured from the defendant a written order for material for a silo denominated as “size 20x40.” This order was signed “O’Connell Bros., by J. W. O’Connell, Jr.” This order also directed the silo to be shipped to Ramona, and said order contained the statement, “This is to cancel former order for 20x30 silo.” On June 30, 1919, the same salesmen procured from J. W. O’Connell a written order for material for a silo denominated as “size 16x40.” This order was signed by J. W. (NConnell and it directed material to-be shipped to Ramona. This order contained the statement, “To cancel order for 20x40 silo now in your office.” On July 7, 1919, plaintiff acknowledged receipt of the order of June 30, 1919, and in such acknowledgment was the statement, “This cancels order 20x40.” The only material ever shipped by plaintiff was the material described in the order of April 24. This shipment was made September 6, 1919, and arrived on September 17. The written conditions specified in the several orders were identical. Amtong other things, they provided that the orders were “accepted subject to delays due to contingencies of transportation, strikes, and other causes beyond our control.” When *234the material contained in the said shipment reached Ramona, deldants refused to accept same.

Defendants in their answer, admit the giving of the order; admit their refusal to accept and pay for said material; allege that said order was duly revoked and canceled before its acceptance by plaintiffs and long prior to the shipment; and allege that such material was ordered for itse for the year 19x9, and was shipped too late for use in that year.

[1,2] Appellants try to avoid the effect of their apparent consent to the cancellation of the order sued on, testifying that the order, which respondents claim contained the cancellation, was an order of J. W. CBConnell and that therefore it did not advise them that O’Connell Bros, were canceling their order. They testified that the acknowledgment of July 7 was merely intended as an acknowledgment of the order received; was made in accordance with the rules of their office; and was in no manner intended to be an acceptance of any attempted cancellation. They also urge that the courts will take judicial notice of labor conditions during 1919, and that they were, owing to such conditions, and because of the provisions of the written order, excused for their delay in shipment. There is no merit in such contentions. These orders were all taken by the same salesmen, agents of appellants — their knowledge mlust be imputed to appellants. Appellants never shipped the order of April 1, thus clearly recognizing the cancellation contained in the order of April 24, though there was a similar difference in the names of the parties giving the two orders. The acknowledgment of July 7 did not contain a verbatim copy of the order sued on; the order sued on, as above noted contained the statement, “To cancel order for 20x40 silo-now in your office,” while the acknowledgment stated, “This cancels order 20x40.” While the trial court might take judicial notice of the general labor conditions existing in 1919, it could not take notice that such conditions interfered, with appellants’ business; and appellants wholly failed. to offer any proof that the. delay in filling this order was because of any labor conditions affecting appellants’ business. Appellants clearly- ratified respondents’ cancellation of the order sued on. Appellants’ delay in delivering the material, until'such time as made it impossible for *235respondents to have the use of the silo in 1919, justified their refusal to accept and pay for same.

The judgment and order appealed from are affirmed.