#### Nebraska Bridge Supply and Lumber Company, Appellant, v. Owen Conway & Sons, Appellees.

1 Sales: authority of agent: presumption. Where an authorized agent of a lumber manufacturer secured a retailer’s order for shingles to be delivered at certain dates, the order being addressed to the manufacturer, numbered and signed by the agent, a presumption arose in the absence of evidence to the contrary that the agent had power to sell, and was not overcome by the writing itself.

2 Statute of frauds: A written memorandum of the sale of personal - property is not within the statute of frauds if signed by the party against whom it is sought to be enforced or a duly authorized agent, whether signed by the other party or not. *238Under the facts of this case an order for the sale of lumber is held enforceable.

3 Waiver. Under the evidence, waiver of the right to damages for failure to fill an order for shingles is not shown.

4 Measure of damages: instructions. An instruction that the measure of damages for failure to deliver goods according to contract was the difference between the contract price and their value at the date of delivery, if conceded to be erroneous in not adopting the date of cancellation of the order, was without prejudice, it appearing there was no substantial difference in values on the respective dates.

*Appeal from Webster District Court.-*— • IíoN. J. R. Wiiit-AKER, Judge.

Friday, April 7, 1905.

ActioN on account, to wbicb tbe defendants, interposed a counterclaim. There was a jury trial, and verdict and judgment in favor of defendants. Plaintiff appeals.

*Affirmed.*

*Martin &*Mitchell, for appellant.

*Heady Brothers &*Kelleher, for appellee. ■

Bishop, J.

Plaintiff is a resident of Omaha, Neb., and is engaged in the sale of lumber, etc., at wholesale. Defendants are retail lumber dealers at Ft. Dodge,, this State. On January 9, 1901, one Rasmussen, a duly authorized agent of plaintiff, appeared in Ft. D'odge and negotiated with defendants for a sale of three car loads of shingles. There was written out by Rasmussen at the time and in duplicate, the following: “Order No. 2122, 1-9, 1901. Nebraska Bridge Supply and Lumber Co.: Ship to Owen Conway & Sons at Fort Dodge, Iowa, one car M. C. & Ft. D. R. R. Three cars of Extra Star A Star, 6-2 Red Cedar Shingles at $2.21. One car to arrive March 1, 1901; one car to arrive April 1, 1901; one car to arrive May 1, 1901. [Signed] *239George Rasmussen.” One of the duplicate copies of'the foregoing, was delivered by Rasmussen to the defendants, and the other sent by mail to the plaintiff at Omaha. On January 30, 1901, defendants ordered of plaintiff by mail a car load of oak bridge lumber, the conceded price and value of which was $169.83, delivered in Ft. Dodge. On February 12th following, plaintiff wrote to defendants, in effect, that it was impossible to fill' any orders for shingles at present, or to make any promises in respect thereto, and that “ we are compelled to cancel your order given to our Mr. Rasmussen for shingles.” And further, in reference to the order for oak lumber, the letter continued: “ The same is being sawed and will be shipped soon. Rut should we ship this car it will be with the distinct understanding that it shall have no connection whatever with the above shingle deal. Let .us hear from you by return mail.” To this letter the defendants answered as of date February 15, 1901, as follows : “We are willing to receive the car of oak with the understanding that it will have no connection with your failure to ship shingles.” The car of oak lumber was shipped-to and received by defendants, by whom the freight was paid, amounting to $94.18. Defendants having failed to pay the balance, or $75.65, this action was brought to recover the same. The ■ defendants do not resist the right of plaintiff to a recovery of such amount due for lumber, but, in the counterclaim pleaded, damages in the sum of $120 are sought to be recovered for the failure on the part of plaintiff to comply with the alleged shingle contract, the amount claimed being the difference in value between the contract price and the value at the date of the breach thereof. To the counterclaim the plaintiff pleads: First, no contract; second, the statute of frauds; third, a waiver of damages. Of these in ■their order of statement.

*2401. Sales: authority of agent; presumption.*239I. Appellant admits the agency of Rasmussen, and the receipt through him of the order for shingles. It is denied, however, that there was any acceptance of such order; that, *240on tlie contrary, tbe same was rejected by tbe letter to de- ' fendant of date February 12tb. If tbe trans- . . action of January 9tb is to be regarded sun*-*° ply as an or(jer from defendant to plaintiff — it being understood tbat tbe part of Rasmussen was to transmit sucb order to tbe borne office, and tbat only — then, clearly enough, an acceptance by plaintiff was necessary to a completion of tbe' contract of sale. Tbe case would then fall witliin tbe rule of *McCormick v. Richardson,*89 Iowa, 525, relied upon by appellant. But there is no evidence in tbe record tbat tbe authority of Rasmussen was limited; be presented himself to defendants and offered to sell, and we think it not unfair to presume tbat bis authority extended to tbe making of sales. Tbe writing signed by him cannot be accepted as rebutting sucb presumption; quite to tbe contrary, it indicates the fact of tbe sale, and gives specific directions as to tbe matter of shipment. In no sense does it purport to be a mere proposition to buy, inviting an acceptance, given out by defendants or by their authority. Tbe case was submitted to tbe jury upon a theory corresponding to our view, and therein we think there was no. error.

2. Statute of frauds. II. Tbe case does not fall within tbe statute of frauds. It is tbe statute tbat no evidence of a contract for tbe sale of personal property, when no part of sucb property is de-leered and no part of the price is paid, is competent unless it be in writing and signed by tbe party charged or bis authorized agent. Code, section 4625. It will be observed tbat tbe statute does not invalidate contracts of tbe character designatedit goes only to tbe means whereby the same may be proven. *Berryhill v. Jones,*35 Iowa, 335. Now tbe party charged is tbe one against whom tbe contract is sought to be enforced, whether be be vendor or vendee. It is not material tbat the party seeking to enforce tbe contract did not sign any memorandum thereof. 29 Am. & Eng. Enc. (2d Ed.) 858, and cases cited. And, where tbe contract is made by an agent, it has been held to be *241sufficient if be sign tbe memorandum in bis own name. *Heffron v. Armsby,*61 Mich. 505 (28 N. W. Rep. 672); 29 Am. & Eng. Enc. (2d Ed.) 864. And certainly sucb may be’ accepted as tbe rule where, as in tbe instant case, tbe writing introduced not only establishes tbe agency, but identifies tbe principal. Tbe memorandum that will be sufficient to take a case out of tbe statute of frauds need not be in any particular form of words, and it may consist of several different writings, if, by tbe terms thereof as expressed, their connection with tbe principal transaction is made to appear. *Ives v.*Hazard, 4 R. I. 14 (67 Am. Dec. 500); *Sanborn v.*Flagler, 9 Allen, 471. See, also, *Lash v.*Parlin, 78 Mo. 291. Tested by these rules, we see no escape from tbe conclusion that tbe writings introduced, considered in tbe light of tbe circumstances under which they were executed, are sufficient to make out a contract as against tbe statute. The' agency of Rasmussen on January 9th is conceded, and although tbe writing of that date was signed by him personally, yet sucb writing, especially when considered in connection with tbe letter written by plaintiff on February 12th, makes it clear that be was in fact acting on behalf of plaintiff. He was at tbe place of business of defendants, and offering to sell shingles. Tbe writing signed by him, executed in duplicate, was made to serve a double purpose — to furnish defendants with written evidence of tbe contract and of tbe terms thereof, and to advise bis principal of the sale, tbe terms thereof, and tbe time and manner of performance agreed upon. The following authorities will be found to lend support to this conclusion: *Williams v. Bacon,*2 Gray, 387; *Kessler v.*Smith, 42 Minn. 494 (44 N. W. Rep. 794); *American Steel Co. v. Midland Steel Co.*(C. C.) 101 Fed. 200; *Austrian & Co. v.*Springer, 94 Mich. 343 (54 N. W. Rep. 50, 34 Am. St. Rep. 350); *Bowers v. Whitney*(Minn.), 92 N. W. 540. We have examined all the authorities cited by counsel for appellant, and we find nothing to warrant a conclusion different from that above expressed.

*2423. Waiver. III. Tbe contention for waiver is made to rest upon the letter of defendants of date February 15thz written in answer to the letter of plaintiff of date February 12, 1901. The issue as tendered by the reply was with- ^ *J J*drawn from the consideration of the jury, and, we think, properly so. If the letters mean anything, it is that the two deals — the sale of the shingles,. and the sale of the oak bridge lumber. — 'were in no event to be considered in connection with each other. As well it might have been said that, in the event of any controversy arising out of either deal, the other should not be regarded as having any inherent connection therewith. It must be manifest that out of such condition no element of waiver could arise.

4. Measure of damages: instruction. IV. Appellant complains of the instruction given by the court upon the measure of damages. The basis adopted in the instruction was the difference, if any, between the contract price and the value at the time agreed * . ° upon for delivery. The contention is that the time when notice of cancellation was given should have been adopted. If we should concede that the contention has merit, there was no prejudice, as, according to the evidence, the difference in the values on the respective datés was slight, if any, and we should not reverse on account thereof in any event.

We conclude that the judgment was right, and it is *affirmed.*