Altoona Portland Cement Co. v. Burbank
Decision Date | 13 October 1914 |
Docket Number | Case Number: 3045 |
Citation | 143 P. 845,1914 OK 463,44 Okla. 75 |
Parties | ALTOONA PORTLAND CEMENT CO. v. BURBANK et al. |
Court | Oklahoma Supreme Court |
¶0 1. FRAUDS, STATUTE OF--Oral Acceptance of Order--Validity--Breach of Contract. An oral acceptance by a seller of a buyer's written order for goods at a price not less than $ 50 is invalid (although only as against such seller and to the limited extent that no demand can ordinarily be predicated upon its breach), under section 847, St. Okla. 1890 (section 941, Rev. Laws 1910), which requires some note or memorandum of such contract in writing to be subscribed by the party charged (in the action), or his agent, to be valid.
2. SAME--Sale of Personalty--Pleading. A buyer's bill of particulars against a seller demanding $ 50 or more as the detriment caused by the breach of the defendant's oral agreement to deliver goods ordered of him by the plaintiff does not state a cause of action by reason of section 847, St. Okla. 1890 (section 941, Rev. Laws 1910), making such agreement invalid only as against such seller and to the extent that no demand against him can ordinarily be predicated thereon.
3. SAME--General Denial. A motion to direct a verdict for defendant raises the question of the validity of a contract under the statute of frauds (section 847, St. Okla. 1890; section 941, Rev. Laws 1910) when liability upon such contract is denied either by a general denial, a special denial of compliance with said statute, or a special affirmative plea of the statute.
4. SAME--Waiver of Statute--Presumption. A failure to demur to a bill of particulars which appears on its face to predicate its demand upon a contract invalid in respect to such demand under the statute of frauds (section 847, St. Okla. 1890; section 941, Rev. Laws 1910) is not a waiver of defendant's right to avail himself of this statute.
5. APPEAL AND ERROR --Instructions --Pleading-- Presumption-- Justices of the Peace. It will be presumed that the defendant's oral pleadings, in a case appealed from a justice of the peace to the county court, were sufficient to warrant the latter trial court's instructions to the jury.
Carl Kruse, for plaintiff in error
H. Z. Wedgwood and E. L. Swigert, for defendants in error
¶1 Plaintiff in error will be designated as defendant, and defendants in error as plaintiffs, in accord with their respective titles in the trial court. The essential facts, when not stated, are necessarily presupposed by this opinion and will be so understood. The defendant, as seller, is not bound by a merely oral acceptance of plaintiffs' order for 500 barrels of cement at $ 1.17 per barrel, nor liable for damages for failure to deliver the same, as such a contract is invalid under section 847, St. Okla. 1890 (section 941, Rev. Laws 1910). Wilkerson v. Patton Sash, Door & Building Co., 10 Ga. App. 697, 73 S.E. 1088; Cable Co. v. Hancock, 2 Ga. App. 73, 58 S.E. 319; Foster v. New York & T. Land Co., 2 Tex. Civ. App. 505, 22 S.W. 260; King v. Cheatham, 104 S.W. 751, 31 Ky. L. Rep. 1176; Wardell v. Williams, 62 Mich. 50, 28 N.W. 796, 4 Am. St. Rep. 814; Haydock v. Stow, 40 N.Y. 363. Also, as establishing the converse or other phases of this proposition, see Baker v. Haswell & Taylor, 36 Okla. 429, 128 P. 1086; Harris et ux. v. Arthur, 36 Okla. 33, 127 P. 695; Schechinger v. Gault et al., 35 Okla. 416, 130 P. 305; Conelly Const. Co. v. Royce, 35 Okla. 425, 130 P. 146; Crabtree v. Eufaula Cotton Seed Oil Co., 32 Okla. 465, 122 P. 664; Taylor v. Canadian Coal Co., 31 Okla. 601, 122 P. 163; Cameron C. & M. Co. v. Universal Metal Co., 26 Okla. 615, 110 P. 720; Tinkelpaugh Kimmet Hardware Co. v. Minneapolis Threshing Machine Co., 20 Okla. 187; 95 P. 427; Love v. Kirkbride D. &: O. Co., 37 Okla. 804, 129 P. 858. The plaintiffs' bill of particulars, demanding $ 199.50 as, in effect, "the excess * * * of the value of the property to the buyer over the amount which would have been due to the seller under the contract if it had been fulfilled" (quoting section 2627, St. Okla. 1890; section 2860, Rev. Laws 1910) and disclosing that defendant had not directly nor by agent subscribed any note or memorandum of the contract in writing, as required by section 847 (section 941), cited supra, stated no cause of action. See cases cited supra. Although our statute renders such contracts invalid only in the qualified sense stated in Schechinger v. Gault et al., 35 Okla. 416, 130 P. 305, we think they are so far invalid, as held in Jones v. Pettigrew, 25 S.D. 432, 127 N.W. 538, under a statute in the same form and derived from the same source (the territory of Dakota), that it is unnecessary for defendant to specially plead the statute. Such contracts are not positively illegal in any particular, but are negatively invalid, although only as against one who has not subscribed a note or memorandum thereof in writing and only to the limited extent that no enforceable demand against him can be predicated thereon in the absence of at least his tacit consent, as by waiver of that point, in the action or of an equitable...
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