
    William Hayden et al. v. Nicholas Frederickson.
    Filed May 19, 1898.
    No. 8094.
    1. Sale: DESCRIPTION op Property: Evidence. In. an action on a contract for the sale of “all patterns that are staple and. down to date,” where no criterion was fixed by which to determine what patterns came within that description, it was error for the trial court to exclude evidence of competent witnesses regarding the standard usually adopted by the trade in selecting' and purchasing such patterns.
    3. -:-: -: Question por Jury. Evidence received without objection, examined and held sufficient to require a submission of the case to the jury.
    Error from the district court of Douglas county. Tried below before Blair, J.
    
      Reversed.
    
    
      C. J. Smyth and T. J. Mahoney, for plaintiffs in error.
    
      George W. Cooper, contra.
    
   Sullivan, J.

By this proceeding in error Hayden Bros, seek to reverse a judgment rendered against them by the district court of Douglas county in an a,ction based on the fob. lowing contract:

“This is to bear witness that Nicholas Frederickson has this day sold and delivered to Hayden Bros, a stock of linens, flannels, domestics, blankets, quilts, and all patterns that are staple and down to date, and everything belonging to the linen and domestic department of the Bell Department Store, of Omaha, Nebraska. It is hereby agreed and understood that said Hayden Bros, pay to said Nicholas Frederickson therefor cash at the completion of the inventory, at the rate of ninety (90) per cent of the original contract price of said goods, without discount. And it is further agreed that said Hayden Bros, pay to Nicholas Frederickson the sum of $250 to bind tbe bargain at tbe signing of tbis agreement.
“Witness onr bands tbis 16tb day of September, 1893.
“Nicholas Frederickson.
“Hayden Bros.”

Tbe verdict in favor of tbe plaintiff was returned in response to a peremptory direction of tbe trial court. Tbe controversy results from tbe refusal of tbe defendants to accept and pay for tbe patterns mentioned in tbe contract. Tbis refusal they attempted to justify at tbe trial on tbe ground that' tbe patterns were not “staple and down to date.” In making tbe invoice and ascertaining tbe patterns that answered tbe requirements of tbe contract tbe plaintiff used an album issued for tbe tben current year by tbe manufacturer of tbe patterns. Tbe contention now is that tbis album was tbe exclusive criterion by wbicb to determine wbetbér tbe patterns were “staple and down to date.” Tbe trial judge, it is quite evident, took tbis view of tbe matter, for be excluded tbe testimony of competent witnesses offered by tbe defendants for tbe purpose of showing that tbe patterns were not staple on account of tbe condition of tbe sealed envelopes in wbicb they were contained and in wbicb they would be kept until sold in tbe usual course of tbe retail trade. He also excluded evidence tending to prove that patterns are bought and sold exclusively upon tbe conditions of, and representations on, tbe envelopes in wbicb they are inclosed, and that patterns contained in soiled, torn, or shop-worn envelopes are not considered, in that line of business, as salable and up to date. Tbe refusal to receive and submit the proffered evidence to tbe jury was error, for wbicb tbe judgment of tbe district court must be reversed. When tbe contract in question was made tbe defendants did not agree to accept tbe “Album of Fashions of tbe Universal Fashion .Company” as an infallible standard by wbicb to determine what patterns were staple and up to date; and there is no evidence whatever in tbe record to warrant the assumption that it was accepted and recognized as such standard among merchants dealing in articles of this kind. On the contrary, it is shown that the fashions are constantly changing and that staple and un-staple patterns may be found oh the same page of any fashion book. In the absence of any law, agreement, or binding usage among merchants, fixing an exclusive test by which to determine the question in dispute, the evidence of witnesses qualified by experience to speak on the subject is competent and should be received.

The court also erred in refusing to submit the case to the jury on the evidence admitted without objection. The testimony of Mr. Johnson, a witness for the defendants, was to the effect that he saw and examined the patterns; that they were all old styles and were neither merchantable nor up to date, some of them having hoop-skirts and bustles. He also stated that Frederickson admitted to him that they had been purchased more than two years before the sale to Hayden Bros. This was clearly sufficient to raise an issue of fact for the decision of the jury, but it is probable the court considered it incompetent, as it was of the same character as the evidence excluded. For these errors the judgment of the district court is reversed and the cause remanded for further proceedings.

Reversed.  