Burley-Winter Pottery Co. v. Onken Bros. & West Co.

• Decision Date: 22 September 1919
• Docket Number: 924
• Citation: 26 Wyo. 287,183 P. 747
• Parties: BURLEY-WINTER POTTERY CO. v. ONKEN BROS. & WEST CO
• Court: Wyoming Supreme Court

183 P. 747

26 Wyo. 287

BURLEY-WINTER POTTERY CO. v. ONKEN BROS. & WEST CO

No. 924

Supreme Court of Wyoming

September 22, 1919

APPEAL from District Court, Sheridan County; HON. JAMES H. BURGESS Judge.

Action by Burley-Winter Pottery Co. against Onken Bros. & West Co. There was a judgment for defendant and plaintiff appeals. Material facts are stated in the opinion.

Affirmed.

Metz and Sackett, for appellant.

The defense was the statute of frauds (3752 C. S.); objection was made to the introduction of a memorandum of sale on the ground of uncertainty; parol evidence is admissible to ascertain the nature and quality of the subject matter of sale (Greenleaf 288; Hurley S. Brown, 98 Mass. 545; Haskell Tukesberry, 92 Me. 551; Henderson v. Coleman, 19 Wyo. 183). Evidence that a named person was in charge of and conducting a business is competent to show agency. The memorandum offered is sufficient (Colrick v. Hopper, 3 Ind. 348.) Evidence was admissible to complete the description (Howard v. Adkins, 167 Ind. 184; 78 N.E. 665).

Lonabaugh and Wenzell, for respondent.

The memorandum of sale was clearly insufficient to satisfy the statute of frauds; a sale memorandum must contain the essential details, which are: 1st, the parties; 2nd, the subject matter; 3rd, the agreement on both sides; and, 4th the price (Taylor v. Scott Co., 178 Ill.App. 487; Selvage v. Talbot, 33 L. R. A. N. S. 973, 20 Cyc 258; Grafton v. Cummings, 99 U.S. 100; Watt v. Cranberry Co., 18 N.W. 898; Paul v. Graham, 160 N.W. 616; Kling v. Borden, 61 N.E. 148). There was no evidence of delivery. The second cause of action is for prepaid freight, but there is no evidence that defendant ever requested anyone to pay freight. No one can create himself a creditor of another by the unsolicited payment of a debt (Elliott Cont. 677). Every person is bound at his peril to ascertain the authority of an agent he deals with (2nd Meacham on Agency, 1721). The authorities cited by appellant are not in point, being from the states of Maine and Indiana, and decided under statutes differing from Wyoming.

BEARD, CHIEF JUSTICE. POTTER and BLYDENBURGH, JJ., concur.

OPINION

BEARD, CHIEF JUSTICE.

In this case the appellant was plaintiff, and the respondent was defendant in the district court, and will be referred to as plaintiff and defendant. The plaintiff in its amended petition, for a first cause of action, after alleging the corporate capacity of each of the parties, alleged in substance and effect that it was engaged in the manufacture and sale of crockery, pottery, glassware, and other articles of like character, in the city of Crooksville, State of Ohio. That on or about April 7, 1914, it sold and delivered to the defendant at defendant's request certain articles of merchandise and other property, at the agreed price of $ 278.50. In the petition was set out an itemized account of goods amounting to $ 284.25, followed as follows:

"Less 1/4c per gallon on 4987 gallons

$ 12.47

Less 10% on $ 32.63 Specialties

3.28

$ 15.75

$ 268.50

Two stop-off charges prepaid

10.00

$ 278.50"

That defendant promised and agreed to pay for said merchandise within a reasonable time after delivery thereof; that said reasonable time had long since expired and said defendant had not paid the same or any part thereof.

For a second cause of action it alleged, that defendant purchased and plaintiff delivered the merchandise set forth in the first cause of action, at which time the plaintiff, at defendant's request, shipped said goods to defendant, by freight, from Crooksville, Ohio, to the towns of Riverton and Lander, Wyoming; that defendant agreed to pay plaintiff the freight charges upon said goods, in the sum of $ 589.58, within a reasonable time after said shipment was made; that plaintiff, at defendant's request, prepaid said freight in said sum; that defendant had refused and neglected to pay the same. Plaintiff prayed judgment for $ 868.08, with interest from May 1, 1918, at 8% per annum.

For answer, defendant denied each and every allegation contained in said petition, except that defendant was a corporation.

For a second defense, defendant pleaded certain new matter, which was denied by the reply. But, as the defendant introduced no evidence, that issue is not in the case here.

It is conceded that the first cause of action comes within the statute of frauds, which reads as follows: "Any contract for the sale of 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 be made in writing and be subscribed by the party to be charged thereby; or, Second--Unless the buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action; or, Third--Unless the buyer shall at the time pay some part of the purchase money." The plaintiff offered in evidence a written order in words and figures as follows:

"Onken Bros. & West Co., Inc.

"Wholesale Grocers

"Sheridan and Casper, Wyoming.

"Burley & Winter Pottery Co.,

"Crooksville, Ohio.

"Please Enter Our Order as Follows:

"Ship to Sheehan & Fisher At Lander, Wyo.

Via C. & N.W. R. R. F. O. B. Crooksville, Ohio.

On all Shipments forward original invoice and bill of lading to Sheridan and Duplicate to Casper

Amount

Size

Article

Price Quoted

Car

Stoneware as per orders shown

for same. at 1/4 ct per gal. less

than Prices sold at.

"Onken Bros. & West Co.,

"Successors to J. E. West Co., Inc.

"Per E. W. Elder."

Defendant objected to the introduction of the order for the reasons, 1, "That it is not shown that the person signing the same had any authority to give the order. 2, That the alleged order is void for uncertainty, and is incompetent, irrelevant and immaterial. 3, That the alleged order wholly fails to disclose the price at which the goods pretended to be described therein are to be sold. 4, The said order wholly fails to describe the subject matter thereof in that there is no sufficient description of the goods sold. 5, The order is void under the Statute of Frauds for the reason that the value of the goods exceeds fifty dollars."

The court reserved its ruling on the objections until the close of plaintiff's evidence, whereupon the defendant moved the court to dismiss the action on numerous grounds, the substance of which were, that no valid contract of sale was proven; that there was no evidence of a delivery of the goods, and that the order offered in evidence was void for insufficiency of description of the goods; no price stated that the evidence disclosed that the order did not contain all of the contract and that the contract in question was for the sale of goods of the value of more than fifty...