Brown & Haywood Company v. Wunder

• Decision Date: 20 May 1896
• Docket Number: 9913--(171)
• Citation: 67 N.W. 357,64 Minn. 450
• Parties: BROWN & HAYWOOD COMPANY v. JOHN WUNDER
• Court: Minnesota Supreme Court

67 N.W. 357

64 Minn. 450

BROWN & HAYWOOD COMPANY v. JOHN WUNDER

Nos. 9913--(171)

Supreme Court of Minnesota

May 20, 1896

Appeal by defendant from an order of the district court for Hennepin county, Jamison, J., denying a motion for a new trial. Affirmed.

This disposes of the case, and the order appealed from is affirmed.

E. C Garrigues and J. B. Atwater, for appellant.

Where a contract is intended to result in the transferring for a price from B to A a chattel in which A had no previous property, it is a contract for the sale of a chattel. Browne St. Frauds, §§ 308, 309, 310; 1 Benjamin, Sales §§ 108, 117; 8 Am. & Eng. Enc. Law, 704-709; Brown v. Sanborn, 21 Minn. 402; Russell v Wisconsin, M. & P. R. Co., 39 Minn. 145, 39 N.W. 302. See, also, Hanson v. Marsh, 40 Minn. 1, 40 N.W. 841; Pratt v. Miller, 109 Mo. 78, 18 S.W. 965; Meincke v. Falk, 55 Wis. 427, 13 N.W. 545; Cooke v. Millard, 65 N.Y. 352. The case does not fall within the principle that the statute of frauds does not apply where the intention of the contract is to make improvements on real property. See Wolfenden v. Wilson, 33 Up. Can. Q. B. 442; Mead v. Case, 33 Barb. 202.

J. H. Cook and F. B. Hart, for respondent.

The contract has been taken out of the statute of frauds by part performance, where in pursuance of such agreement a party has suffered injury and loss. Brown v. Hoag, 35 Minn. 373, 29 N.W. 135; Pressnell v. Lundin, 44 Minn. 551, 47 N.W. 161; Herrick v. Newell, 49 Minn. 198, 51 N.W. 819. The contract was not for the sale of goods and chattels. Phipps v. McFarlane, 3 Minn. 61 (109). If the article is to be manufactured upon a certain plan or model furnished, and without the particular contract the article would never have been manufactured in the particular manner, shape or condition required by the contract, the statute of frauds does not apply. Hight v. Ripley, 19 Me. 137; Meincke v. Falk, 55 Wis. 427, 13 N.W. 545; Mixer v. Howarth, 21 Pick. 205; Goddard v. Binney, 115 Mass. 450; Sawyer v. Ware, 36 Ala. 675; Atwater v. Hough, 29 Conn. 508.

A contract to make up materials and affix them to the land is not a contract for the sale of goods. Wood, St. Frauds, § 284; Benjamin, Sales, § 108; Tripp v. Armitage, 4 M. & W. 687; Clark v. Bulmer, 11 M. & W. 243.

OPINION

CANTY, J.

This is an action for damages for loss of plaintiff's anticipated profits, caused by the breach by defendant of an executory agreement between the parties. Defendant was about to bid for a contract to rebuild a burnt portion of a building in Minneapolis, and received from plaintiff the following proposition to furnish the glass for the same: "Minneapolis, Minn., Feb. 6th, 1894. John Wunder, Esq., City -- Dear Sir: We will furnish all plate glass, double-strength glass, beveled plate set in metallic sash, and crystalline glass, as per plans and specifications, for the burnt portion of the Syndicate Block, set complete in place, for thirty-one hundred dollars. This includes glass for water closets and crystalline glass in skylights; also, mirrors around show-window posts. Yours faithfully, Brown & Haywood Co." The evidence tends to prove that defendant then and there orally promised plaintiff that, if he should be awarded the contract to reconstruct such portion of the building, and plaintiff's bid for the glass work was the lowest received by him, he would award the glass work to plaintiff; that the contract for reconstruction was so awarded him, and plaintiff's bid for the glass work was the lowest, but that he refused to permit plaintiff so to furnish the glass work, and let the furnishing of the same to others. On the trial the jury found for plaintiff in the sum of $ 325, and from an order denying a new trial, defendant appeals.

The only question raised on this appeal is that defendant's verbal promise to award the contract for the glass work to plaintiff is void under the statute of frauds. G. S. 1894, § 4210, provides: "Every contract for the sale of any goods, chattels or things in action for the price of fifty dollars or more, shall be void, unless -- First, a note or memorandum of such contract is made, in writing, and subscribed by the parties to be charged therewith," or unless there has been a part performance. It is contended by appellant that this contract is one for the sale of goods and chattels, and therefore within the statute. We cannot so hold. In our opinion, it appears, from the evidence, to be a contract for the manufacture of articles of special and peculiar design, not suitable for the general trade. Such a case is not within the statute. Browne, St. Frauds, §§ 304, 305, 307, 308; 1 Reed, St. Frauds, § 247; Phipps v. McFarlane, 3 Minn. 61 (109).

The testimony tends to prove that, in the usual course of business, the glass is carried in stock in sheets of...