Brown v. Snider

• Court: Michigan Supreme Court
• Writing for the Court: MOORE, J.
• Citation: Brown v. Snider, 126 Mich. 198, 85 N.W. 570 (Mich. 1901)
• Decision Date: 02 April 1901
• Parties: BROWN et al. v. SNIDER.

85 N.W. 570

126 Mich. 198

BROWN et al. v. SNIDER.

Supreme Court of Michigan

April 2, 1901

Error to circuit court, Mecosta county; Lewis G. Palmer, Judge.

Action by Frank E. Brown and another against Jacob Snider. From a judgment in favor of defendant, plaintiffs bring error. Affirmed.

Grant J., dissenting.

Chas E. Ward and C. H. Thrall, for appellants.

Frank Dumon, for appellee.

MOORE J.

The plaintiffs live in Grand Rapids, and are wholesale dealers in robes, blankets, and harnesses. The defendant resides at Remus, and is a retailer of the same line of goods. On the 31st day of May, 1899, the agent of plaintiffs visited the defendant at his place of business, having with him samples of his goods, from which defendant made selections of goods which he orally agreed to purchase. The agent made in triplicate two lists of the goods ordered, one of which he gave to defendant, and one was forwarded to the plaintiffs. The heading of the first of these lists reads as follows 'Date, May 31st, '99. Brown & Sehler, Grand Rapids Mich. Salesman, D. D. Sold to J. Snider. Ship to Remus, via D., G. R. & W., at once.' Then followed a list of goods amounting to $29.62. The heading of the other list reads as follows: 'Brown & Sehler, Grand Rapids, Mich. Date, May 31st, '99. Salesman, D. D. Sold to Jake Snider. Ship to Remus. Oct. 1st, '99.' Then followed a list of goods amounting to $95.05. Both of these lists were signed by Brown & Sehler, per D. D., but neither of them was signed by defendant. On the following day the defendant wrote the plaintiffs as follows: 'Remus Mich., June 1, '99. Mr. Brown & Sehler, Esq.: Please cancel my whole order given to Mr. D. Drummond, as I have found out he had been to Mr. Huber and tried to sell him goods, and as I do not want to trade with you if Huber & Farwell are your customers. Hear you have taken care of Huber & Farwell first, so please cancel my whole order, as I won't accept it under circumstances, and oblige. Respectfully, Jacob Snider.' To which the plaintiffs replied, under date of June 3d, as follows: 'Jacob Snider, Remus, Mich.--Dear Sir: Replying to your favor of the first, will say that our Mr. Drummond did not sell Huber & Farwell anything we sell you. You did not buy light harness of us, and he sold some light harness to them, and that is all he sold them. If you bought harness of us, we would give you the exclusive sale in the town; but, as you did not, you could not ask us not to sell any one else in this town. We will ship your goods. Yours, truly, Brown & Sehler.' It further appears from the record that on the 2d day of June, 1899, the plaintiffs shipped to the defendant the goods for immediate delivery, and sent to him by mail an invoice of the same. The writer of the letter of June 3d did not know the goods had been shipped when he wrote the letter. When these goods arrived at Remus they were received and accepted by the defendant, and subsequently paid for; he paying to plaintiffs on the 18th day of August, 1899, their entire account, which included the goods shipped June 2d. On the 1st day of September, 1899, the defendant wrote the plaintiffs as follows: 'Mr. Brown & Sehler: Have you canceled my order for horse blankets? If not, then cancel same, as I will be unable to accept them, and save further trouble, and oblige. Respectfully, Jacob Snider.' This letter was received by plaintiffs on the morning of the 3d day of September. On the 1st day of September, 1899, the plaintiffs shipped to the defendant, at Remus, the goods specified in the second list, which consisted of horse blankets, and mailed him an invoice thereof. The defendant refused to receive the goods, and on the 16th day of September wrote the plaintiffs as follows: 'Brown & Sehler, Grand Rapids, Mich.--Gentlemen: Your bill of horse blankets I strictly refuse, as I have notified in time; lies here subject to my cancellation, and subject to your disposal. Please look after them, and oblige. Yours, respectfully, Jacob Snider.' Other correspondence followed, and finally this suit was brought. A verdict was rendered in favor of the defendant. The plaintiffs have brought the case here by writ of error.

It is theory of the plaintiffs that there was in fact but one transaction between the parties, that the orders constituted but one contract, that such contract was partly performed when the defendant received and accepted the goods which were for immediate shipment, and that the case was taken out of the statute of frauds by the act of the defendant in accepting and receiving such goods, and that when the plaintiffs had set apart the remainder of the goods, and delivered them to the carrier, consigned to the defendant and the term of credit had expired, their right of action was complete; and they asked the court to direct a verdict in their favor for the amount of the claim. On the part of the defendant it is claimed that the orders, although given at the same time, were distinct and separate contracts; that the one was an order for goods to the amount of $29.62, to be delivered at once, and that this order was not affected by the statute of frauds; that the second order was for goods to the amount of $95.05, to be delivered several months later, and not until after the terms of credit given on the first order had expired; that, upon the undisputed facts of ...