Bass v. Walsh

• Decision Date: 31 October 1866
• Citation: 39 Mo. 192
• Parties: JOHN W. BASS, JOSEPH GAFFORD, AND ROBERT B. FOOTE, Respondents, v. AUSTIN WALSH, Appellant.
• Court: Missouri Supreme Court

39 Mo. 192

JOHN W. BASS, JOSEPH GAFFORD, AND ROBERT B. FOOTE, Respondents,

v.AUSTIN WALSH, Appellant.

Supreme Court of Missouri.

October Term, 1866.

Appeal from St. Louis Circuit Court.

Plaintiff's instructions given:

1. If it appears from the evidence that plaintiffs by their agent Hawley agreed to sell and that the defendant agreed to buy the 223 bales of hay at the price and sum of $33 per ton; that Hawley thereupon handed defendant a ticket showing the number of bales of hay and where the same was, and that by the custom of merchants said ticket would authorize the hay to be delivered to defendant as soon as the same was weighed, and that defendant thereupon stated that he did not want it weighed on that day; that plaintiff assented thereto upon condition that said hay should be at the charge of defendant, to which condition defendant assented,--then plaintiffs are entitled to recover of the defendant the price agreed on.

2. If the court finds that the plaintiffs by their agent sold the hay in question to the defendants at $33 per ton, and at the time delivered to him a sale ticket as described in evidence, that by custom said sale ticket authorized defendant to receive the same under his control, then there was a valid sale and delivery of the hay.

3. If it appear from the evidence in this case that by the contract between the parties the hay was to be weighed merely for the purpose of ascertaining how much money defendant was to pay at $33 per ton, the price having been agreed upon; that the hay was at the levee, at the time of such contract of sale, separate from any other hay; that it was not in the actual possession of some third party, nor in the actual possession of any one; that a ticket or other badge of authority to receive or take the hay, either before or after the hay should be weighed, was given by the plaintiffs' agent to the defendant,-- then the sale and purchase is complete, and the defendant is liable for the value of the hay at the contract price.

Defendant's instructions refused:

1. If the court believes from the evidence that plaintiffs agreed to sell and that defendants agreed to buy the bales of hay at the price named in the petition, and that plaintiffs thereupon handed to defendant a ticket showing the number of bales of hay and where the same lay, and that by the custom of merchants said ticket would authorize the hay to be delivered to defendant as soon as the same was weighed, and that defendant thereupon stated that he did not want it weighed on that day, and that plaintiffs assented thereto upon condition that said hay should be at the charge of the defendant, to which condition the defendant assented,--the court will find for the defendant, unless the court should further believe from the evidence that defendant expressly waived any right to object to the quality or quantity of the goods, and that the wharfinger agreed to hold the same for the defendant.

2. Unless defendant actually accepted the hay described in plaintiffs' petition, the sale was void under the statute of frauds; and there was no actual acceptance on the part of the defendant if he still retained the right to object to the quantity or quality of the hay.

3. If the court believe from the evidence that defendant received from plaintiff a memorandum in writing which amounted to an order on the wharfinger or carrier to deliver the goods in question to the defendant or his order, yet the court declares the law to be that this was no delivery of the goods to the defendant so as to take the case out of the statute of frauds unless the wharfinger or carrier attorned to defendant and agreed to hold the goods for him.

4. The court declares the law to be that, in order to the validity of the contract of sale sought to be maintained in this suit, it is necessary that defendant should accept part of the goods so sold, and actually receive the same; and although it may appear from the evidence, that, by the custom of merchants of this place, the delivery of a sale ticket such as is described in the evidence, when coupled with the request of the purchaser that the goods might not be weighed till next day, and in the meantime they should be at the charge of the purchaser, was equivalent to and operated as a delivery; yet, unless there was some further acceptance on the part of the purchaser, such custom does not fill the requirements of the law and is illegal.

Bakewell & Farish, for appellant.

I. The statute of frauds must be strictly construed, and some meaning must be given to the words “actually received the same.” The statute does not say merely that the buyer shall accept the goods; it says that he shall “accept” them, that he shall “receive” them, and that he shall “actually receive” them.

II. The constructive delivery will not do; there must be an actual delivery.

III. The mere actual delivery will not do; there must be a receipt.

IV. The mere constructive receipt will not do; there must be actual delivery and actual receipt.

V. The mere actual delivery and actual receipt will not do; there must be actual acceptance.

VI. There is no actual receipt so long as the buyer can object to quantity or quality; consequently, where the buyer has yet to see the goods to determine the quality and condition, and they are yet to be weighed to determine their quantity (as was here the case), it is nonsense to talk of a receipt.

The inclination of courts is to give the words of the statute full effect-- Smith's Merc. L., 571-8, Am. ed., and cases cited; Add. on Cont. 70; Sto. on Sales, 276-9. That this particular memorandum was no sufficient delivery-- Ives v. Pollax, 14 How. Pr. 411; Burtall v. Burn. 5 Dowl. & Ryl. 284; Baldy v. Parker, 2 Barn. & Cress. 35; Farina v. Horne, 16 Mees. & W. 122; Bentall v. Burr, 3 Barn. & Cress. 426; Stoyd et al. v. Wright, 25 Geo. 215; S. C. 20 Geo. 577; Shindler v. Houston, 1 Const. 261; Gillman v. Hill, 36 N. H. 320; Shepherd v. Tracy, 32 N. H. 56.

The instructions asked by defendant and refused by the court are most fully borne out by the text books cited, and by these cases, selected amongst multitudes all looking the same way. Cunningham v. Ashbrook, 20 Mo. 552, is not a case in point; in that case there was an actual delivery of the hogs, and the vendees had slaughtered them; and in Glasgow v. Nicholson, 30 Mo. 29, there had been a delivery and acceptance of four-fifths of a lot of goods bought under one contract.

Sharp & Broadhead, for respondents.

There is only one point in this case, and that is whether there was a delivery to and acceptance of the hay by the defendant below, within the provisions of the statute of frauds. There is no necessity of a manual delivery of an article so ponderous and bulky as a bale of hay. The law does not require an actual delivery, but only that the article be placed in the power of the purchaser, or that his authority as owner be recognized by some formal act of the seller. The delivery of a receipt ticket sale note, or other evidence of title to goods, is a sufficient delivery--Glasgow et als. v. Nicholson, 25 Mo. 30. After delivery the property is at the risk of the buyer--Id. 31. That case was almost precisely similar in its details to the case before the court. There was no actual delivery of the sugar in that case; it was sold on the levee by sample; the sugar was weighed by the city weigher; but when the defendant sent a dray for the sugar, one of the hogsheads was missing: the court held that the lost hogshead was at the risk of the purchaser. In the case before the court the hay was not weighed, but this was by express direction of the buyer, to which the seller assented.

The rule in such cases, as established by the adjudications, is that “the party affirming the sale must satisfy the jury that the delivery, whether actual or symbolical, was intended to be an absolute transfer, and all that remained to be done was merely for the purpose of ascertaining the price of the articles sold at the sale agreed upon.”--Riddle v. Varnum, 20 Pick. 283-4; Cunningham v. Ashbrook, 20 Mo. 562.

There may be an actual delivery without an acceptance, because, from the character of the article delivered, or from the fact that it is to be separated from other articles, the purchaser may have the right to object and return the article on account of defect in quantity or quality. But this cannot well happen in the case of a symbolical delivery; there the delivery implies an acceptance, because the purchaser takes the symbol as vesting him with an authority to receive and to exercise complete ownership over the property. In the case before the court the weighing was evidently only intended to ascertain the amount of money to be paid, not to separate it from any other property of the same kind.

After all, the act done...