Bond v. Bourk

• Decision Date: 09 December 1912
• Citation: 54 Colo. 51,129 P. 223
• Parties: BOND v. BOURK.
• Court: Colorado Supreme Court

129 P. 223

54 Colo. 51

BOND v. BOURK.

Supreme Court of Colorado

December 9, 1912

Rehearing Denied Jan. 6, 1913.

Error to District Court, City and County of Denver; Carlton M Bliss, Judge.

Action by Frank O. Bourk, doing business as the American Root Beer &amp Supply Company, against Veal D. Bond, doing business as the Lincoin Drug Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Harry E. Kelly and Charles H. Haines, both of Denver, for plaintiff in error.

John H Reddin and J. R. Allphin, both of Denver, for defendant in error.

BAILEY J.

In substance the complaint alleges that on or about March 10, 1908, plaintiff Bourk entered into an oral agreement with defendant Bond, to manufacture and deliver to the latter a soda water fountain of certain dimensions and particular design, to be manufactured by A. H. & F. H. Lippincott, of Philadelphia, except the marble counter and base and the superstructure and wooden base, which were to be made by the Eureka Marble Works and J. P. Paulsen, respectively, Denver firms, all in accordance with certain specifications furnished by the Philadelphia company; that defendant agreed, in payment therefor, to deliver to the plaintiff a certain secondhand soda water fountain and apparatus, of the agreed value of $126, and the sum of $930, $45 thereof in cash, $140 thereof on delivery of the new fountain, and the balance in equal monthly installments for which notes were to be given, payment to be secured on the fountain; that defendant, upon tender of the new fountain, refused to accept it, or permit it to be installed, or to make the cash payments or execute the notes, or to in any way perform his part of the agreement; and that the fountain is held by plaintiff as the property of the defendant. The complaint also sets out a memorandum agreement in evidence of the oral one, which on its face appears to be a contract between A. H. & F. H. Lippincott and the defendant. It was on a printed form used by the Lippincotts, filled in to conform to the alleged agreement. It is further averred that the names A. H. & F. H. Lippincott, whenever they appear therein, should be erased and the name of the plaintiff inserted in lieu thereof. Damages were prayed at the agreed price of the fountain. The defendant admitted that he signed the memorandum agreement set out in the complaint, but denied that it was a contract with plaintiff; also admitted that he refused to deliver the old fountain or accept the new, or to permit plaintiff to put it up, or to make the cash payments or execute the notes, and denied all other allegations. The second defense is a general denial. The third defense alleges noncompliance with, and nonperformance by plaintiff of, the provisions of the agreement. The replication puts in issue all new matter in the answer. A jury found for the plaintiff upon the issues tendered, and assessed his damage at $1,105.28, being the contract price with interest. Judgment was entered accordingly, and the defendant brings the case here for review on error.

Defendant contends that there was no contract between himself and the plaintiff, as alleged, or at all; and further, that if the agreement set out in the complaint is held to be between plaintiff and defendant, still there was a failure by plaintiff to perform the conditions thereof binding on him, and no recovery can be upheld.

The jury, under full and correct instructions, found that the contract was made by the parties as alleged in the complaint, and also that plaintiff had fully complied with its terms, completed the fountain according to specifications, offered to deliver the same within the time specified and set it up as required by the agreement. These findings have ample support in the evidence, and are conclusive on review. So that it must be accepted as settled that the contract is as set forth by plaintiff, and that he had fully complied, or was ready, able and willing to comply, with all of its provisions binding on him.

It is urged that there can be no recovery, because there was no sufficient written agreement between the parties, as required by the statute of frauds, that every contract for a sale of 'goods, chattels or things in action' for the price of $50 or more shall be void unless a note or memorandum thereof be made in writing and subscribed by the parties to be charged therewith. Is the contract within the statute of frauds?

The fountain which the plaintiff agreed to manufacture and deliver was of particular dimensions and finished after a special design furnished by a third party. It does not appear that it was such an article as the plaintiff manufactured or produced for general trade purposes, nor does it appear that he manufactured such an article in the ordinary and usual course of business. The wood work was to be furnished by one party, the marble work by another, and the working parts by still another; all of which plaintiff contracted to assemble and deliver to the defendant, in the form of a complete new soda water fountain after a special design, peculiarly adapted for the use to which, and in the place where, defendant had planned to put it. The prevailing rule in American courts is that an agreement by one to construct an article particularly for and according to the plans of another, whether at an agreed price or not, although the transaction is to result in a sale of the article, is a contract for work and labor. The contract is for the manufacture and sale of a thing made to suit the fancy and serve the particular convenience and purpose of the defendant, without a market value for use in general trade, and therefore, although the agreement might result in the production and sale of a chattel, is one for work and labor, and not within the statute of frauds. Hientz v. Burkhard, 29 Or. 55, 43 P. 866, 31 L.R.A. 508, 54 Am.St.Rep. 777; Flynn v. Dougherty, 91 Cal. 669, 27 P. 1080, 14 L.R.A. 230; Goddard v. Binney, 115 Mass. 450, 15 Am.Rep. 112; Meincke v. Falk, 55 Wis. 427, 13 N.W. 545, 42 Am.Rep. 722; Gross v. Heckert, 120 Wis. 314, 97 N.W. 952; Forsyth v. Mann, 68 Vt. 116, 34 A. 481, 32 L.R.A. 788; Bird v. Muhlinbrink, 1 Rich. (S. C.) 199, 44 Am.Dec. 247; Donnell v. Hearn, 12 Daly (N.Y.) 230; Parker v. Schenck, 28 Barb. (N.Y.) 38; Higgins v. Murray, 73 N.Y. 252; Meyer Bros. Drug Co. v. McKinney, 137 A.D. 541, 121 N.Y.S. 845; Mead v. Case, 33 Barb. (N.Y.) 202; Moore v. Camden Granite & Marble Works, 80 Ark. 274, 96 S.W. 1063, 117 Am.St.Rep. 87, 10 Ann.Cas. 308; Pratt v. Miller, 109 Mo. 78, 18 S.W. 965, 32 Am.St.Rep. 656; 29 Am. & Eng. Ency. Law, pp. 964, 965; 20 Cyc. pp. 241, 242. In this view it becomes unnecessary to determine whether the memorandum referred to is a sufficient compliance with the requirement of the statute of frauds under consideration.

The agreement before us is clearly distinguishable from the one considered in the case of Ellis v. D. L. & G. R. R. Co., 7 Colo.App. 352, 43 P. 457, based upon a contract to make railroad ties, which could have been bought in the open market, are variously produced and sold in the ordinary course of trade, and...