Billin v. Henkel

• Decision Date: 03 December 1886
• Citation: 9 Colo. 394,13 P. 420
• Parties: BILLIN and others v. HENKEL and others.
• Court: Colorado Supreme Court

13 P. 420

9 Colo. 394

BILLIN and others v. HENKEL and others.

Supreme Court of Colorado

December 3, 1886

Appeal from county court, Pueblo county.

Appellees brought suit in the county court of Pueblo county against the appellants, on an account for goods sold and delivered to appellants on the third day of May, 1881, amounting to the sum of $221.85. The answer of the appellees denied the indebtedness, and set up the statute of frauds as to the alleged contract of sale, averring that no note or memorandum of it was in writing; that no part of the goods had been accepted or received by the appellants; and that no part of the purchase money had been paid. Judgment was given for the appellees in the county court for the amount of their demand and also in the district court, on appeal from the judgment of the county court. It appeared from the evidence that the appellants Billin and Huston called personally at the place of business of the appellees, in Pueblo, for the purpose of purchasing a quantity of coal-oil; that appellees were merchants, and kept such oil in stock in their warehouse that, after some time spent in negotiations, appellants verbally ordered the shipment, to their place of business at Poncha Springs, by way of the Denver & Rio Grande Railroad of 20 barrels of coal-oil, of the grade known as '110 test,' and for which they agreed to pay the appellees 21 cents per gallon. The oil was put up and delivered to the railway company in good condition on the same day or next morning, and a bill of lading given therefor to the appellees, specifying that the goods were received for shipment 'at the owners' risk.'

From evidence, admitted against the objections and exceptions of the appellants, it appeared that, shortly after the shipment of the oil, Henkel & Co. wrote a letter to the appellants requesting payment; and that Mr. Billin, of the latter firm, replied to the effect that his partner Huston was then in Denver, trying to collect from the railway company damages which the oil had sustained in transit, and that as soon as that was arranged, which would be in a few days, the appellees' bill would be settled. This letter appears to have been read in evidence on trial, in the county court, but, having been since lost or mislaid, evidence of its contents was allowed to be introduced on the trial in the district court, over objections and exceptions of the appellants, inter alia, that the loss of the original had not been proved. On part of the appellants it was shown that the barrels were leaking badly when the oil reached Poncha Springs; that the members of the appellant firm were absent, having left their book-keeper, Alfred Darrow, in charge, who refused to receive the oil because it was leaking, and not in marketable condition. It was further shown that a Mr. Dunbaugh, a traveling salesman of the appellees, was at Poncha Springs after the arrival of the oil; and that Darrow proposed to him that, if he would haul and place the oil in the store-house of Dillin, Huston & Co., he would store it, and sell it for the appellees on commission; that Dunbaugh replied he would telegraph his firm for instructions, and, until the same were received, he could do nothing; that he did telegraph, and the firm answered to do nothing about the matter, and it does not appear that he took any further action.

The first instruction given by the court at the request of the plaintiffs was as follows: ' First. The court instructs the jury that if they believe from the evidence that the defendants, Billin, Huston & Co., purchased from the plaintiffs, Charles Henkel & Co., twenty barrels of coal-oil at the price of two hundred and twenty dollars and eighty-five cents, and directed the plaintiffs to deliver the said coal-oil at the depot of the Denver & Rio Grande Railway, at the city of Pueblo, to be shipped to defendants, and that plaintiffs did so deliver the said coal-oil in good order, and it was the quality agreed upon, at the said depot, as directed by the defendants, and that defendants have not paid the purchase price thereof, or any part thereof, then they should find for the plaintiffs such sum as they may find from the evidence to be due.'

George R. Elder, for appellants.

Bradford, Murray & Bradford and George Q. Richmond, for appellees.

BECK C.J.

The statute of frauds being pleaded to the alleged contract for the sale of the oil, and no note or memorandum in writing of the contract having been made and subscribed by the parties, no part of the goods bargained for, or the evidence of some of them having been accepted and received by the purchasers, nor any part of the purchase money paid at the time of the transaction, the contract of sale was within the statute, and void by the express terms thereof when entered into. Gen. Laws, § 1262.

The first instruction given the jury by the court, at the request of the appellees, plaintiffs below, was to the effect that full performance by the vendors of the terms and conditions of the verbal contract of sale on their part to be observed and performed, entitled them to maintain their action and to judgment for the contract price of the goods sold. If a void contract can be rendered valid by performance on the part of one party only, non-concurred in after performance by the other party, then this instruction is correct. Such, however, is not the law. To render such contract valid, there must be performance on the part of the vendees as well; that is, they must not only receive, but accept, the goods so bargained for.

Counsel for the appellees mistake the law in the first proposition of their brief, viz., that the case is controlled by the rule of law laid down in Tarling v. Baxter, 6 Barn. & C. 360,--'that when there is an immediate sale, and nothing remains to be done by the vendor, as between him and the vendee the property in the thing sold vests in the vendee, and then all the consequences resulting from the vesting of the property follow, one of which is that, if it be destroyed, the loss falls on the vendee.' This rule has no application to a contract of sale falling within any of the nullifying provisions of the statute of frauds.

Counsel are likewise in error upon their main proposition on which they rely for an affirmance of the judgment below, that the goods having been delivered to the carrier designated by the purchasers, and being of the quality, quantity, and price agreed upon, this delivery was equivalent to an acceptance by the purchasers, and vested the property in them.

One of the cases cited in support of the proposition is Diversy v. Kellogg, 44 Ill. 114. The nature of the case (but not of the contract, since a question is raised as to its validity) will sufficiently appear from the following extracts from the opinion: 'If appellee shipped, within a reasonable time, the amount and quality of liquor sold to the appellant, in the manner directed, the property vested in the latter, and it was at his risk from the time it was shipped. * * * As soon as goods are delivered to a carrier, under a contract of sale, the title vests in the purchaser, subject to stoppage in transitu, but with no other lien, unless expressed in the terms of sale. * * * If it was of a different quality from that purchased, he was not bound to accept it, but might,...