Burrell v. Highleyman

• Decision Date: 11 December 1888
• Citation: 33 Mo.App. 183
• Parties: S. H. BURRELL et al., Appellants, v. S. L. HIGHLEYMAN, Respondent.
• Court: Missouri Court of Appeals

33 Mo.App. 183

S. H. BURRELL et al., Appellants, v. S. L. HIGHLEYMAN, Respondent.

Court of Appeals of Missouri, St. Louis.

December 11, 1888

Appeal from the St. Louis City Circuit Court. --HON. SHEPARD BARCLAY, Judge.

AFFIRMED.

Dyer, Lee & Ellis, for the appellants.

The rule of law is tersely and clearly laid down in 3 Parsons on Contracts [7 Ed.] p. 54, as follows: " If the contract states or implies that the thing is to be made by the seller and also blends together the price of the thing, and compensation for work, labor, skill and material, so that they cannot be discriminated, it is not a contract of purchase and sale, but a contract of hiring and service, or a bargain by which one party undertakes to labor in a certain way for the other party, who is thereupon to pay him certain compensation; and this contract is, therefore, not within the statute. And these rules will be found to reconcile most of the recent authoritative decisions on the subject." The three pieces of furniture, in their unfinished condition were not articles of furniture then existing, and did not become such until completed in accordance with the respondent's instructions. They were manufactured especially for the respondent, and upon his special order and not for the general market, and therefore, the contract for them was not within the statute of frauds. Goddard v. Binney, 115 Mass. 450; Mead v. Case, 33 Barb. 202; Meincke v. Falke, 55 Wis. 427; Parker v. Schenck, 28 Barb. 38; Courtright v. Stewart, 19 Barb. 455; Eichelberger v. McCauley, 5 Harr. & J. (Md.) 213; Hight v. Ripley, 19 Me. 137; Cummins v. Dennett, 26 Me. 397; Abbott v. Gilchrist, 38 Me. 280; Edwards v. Railroad, 48 Me. 379; Crockett v. Scribner, 64 Me. 447; Allen v. Jarvis, 20 Conn. 38; Spencer v. Cone, 1 Met. 283; Crookshank v. Burrell, 18 Johns. 58; Parsons v. Loucks, 48 N.Y. 17; Deal v. Maxwell, 51 N.Y. 652; Dowling v. McKenney, 124 Mass. 478; Downs v. Ross, 23 Wend. 271, 272; Higgins v. Murray, 73 N.Y. 252; Wharton v. Car & Foundry Co., 1 Mo.App. 577.

H. S. Priest, for the respondent.

Long after the statute of Geo. IV., interpreting in part the statute of frauds, and until the decision in Lee v. Griffin, 1 B. & S. 272, the construction of the statute of frauds in its application to a given case was in doubt. But that case is said to have settled the law in England, and has been followed by all of the states of the union which had not previously declared in favor of the early and narrow rule of the English courts. " When the subject-matter of the contract is a chattel to be afterwards delivered, then the cause of action is goods sold and delivered, and the seller cannot sue for work and labor." The rule of Lee v. Griffin, as we have before remarked, has been followed in all the states not bound by having adopted the earlier English rule. It is the rule in Minnesota, Wisconsin, Connecticut and New Hampshire. Bunt v. Bailey, 21 Minn. 402; Hardell v. McClure, 1. Pin. (Wis.); Prescott v. Locke, 51 N.H. 94; Atwater v. Hough, 29 Conn. 508; Clark v. Nicholds, 107 Mass. 547; Moody v. Brown, 34 Me. 107; Clay v. Yates, 1 H. & N. 73; Delventhal v. Jones, 53 Mo. 463; Kirby v. Johnson, 22 Mo. 354; Smith v. Surman, 9 B. & C. 568; Atkinson v. Bell, 10. B. & C. 279.

OPINION

ROMBAUER P. J.

The question of law arising upon this appeal will sufficiently appear by the plaintiff's statement filed herein, a brief summary of the plaintiff's and defendant's evidence, and the declaration of law made by the court, it being conceded that the statute of frauds was interposed as a defense to the action.

The statement of the cause of action, filed before the justice, is as follows: " Plaintiffs state that at the time of the transactions hereinafter set forth, they were co-partners, trading under the name of Burrell, Comstock & Co., and for their cause of action herein plaintiffs say, that in or about the month of April, 1885, the defendant requested plaintiffs, who were then and there manufacturers and dealers in furniture, to manufacture for him the following furniture, to-wit: One mahogany parlor sofa, one mahogany easy chair, one mahogany small chair, and agreed to pay plaintiffs therefor the sum of two hundred (200) dollars, and that plaintiffs accepted said order. That immediately after said order was given to plaintiffs, they manufactured said furniture, as they had agreed to do, and then and there offered to deliver said furniture to the defendant, but the defendant then and there refused to accept or receive the same. Plaintiffs further say that, by reason of the failure and refusal of defendant to receive and pay for said furniture according to his contract, they have been damaged in the sum of one hundred (100) dollars, for which they claim judgment."

The plaintiffs, subject to the objection of the statute of frauds, gave evidence tending to show that they were manufacturers and dealers in furniture; that the defendant called at their place of business and ordered a parlor set, consisting of a sofa, an arm-chair, and ladies' chair, for two hundred dollars; that this furniture was complete at the time, with the exception of the covering and trimming; that it is kept in stock in that shape, for inspection, and covered and trimmed according to order of purchasers; that the defendant selected the covering and trimming, which was worth about one hundred dollars, or half the price of the finished furniture, and thereupon left. No memorandum of the transaction was made, nor was any earnest-money paid. The furniture was completed before the defendant revoked his order. The defendant refused to take the goods when completed.

The defendant gave evidence tending to show that he gave the order as stated by plaintiffs, with the proviso that, as he would not need the furniture for a couple of weeks, plaintiffs need not keep it for him, but should sell it if anybody else wanted it. The same evening, or the next day, the defendant becoming dissatisfied with his bargain, wrote to plaintiffs that he would not take the furniture.

The court thereupon made the following declaration of law: " If the court finds, from the evidence, that the contract in question was intended by both parties as a sale of the goods in question, for a price of two hundred dollars, to be hereafter delivered, and that no earnest-money was paid and no part of the goods accepted, and the contract not in writing, then, under Revised Statutes, section 2514, invoked by the defendant herein, the finding must be for the defendant." And having thus declared the applicatory law, rendered a judgment in favor of the defendant.

It has been a mooted question, both in England and here, what contracts of this kind should be considered contracts for work, and as such not within the statute, or else contracts for the sale of goods or chattels, and as such within it. Perhaps no subject in the law has been more refined upon, with results less satisfactory.

As courts in former times did not view the statute with great favor, most of the earlier decisions were departures from its literal construction. A distinction was made between chattels completed at the date of the agreement, and those to be completed, between incompleted chattels on which the work was subsequently done for the vendor's benefit, and those on which the work was done for the vendee's benefit; between cases where the material formed the main value and those where the work formed the main value. Courts in various jurisdictions held that the former class was within the statute, and the latter was not, but courts in the various jurisdictions putting their rulings on almost as many different propositions as the case in its nature would admit of.

Perhaps no better illustration can be furnished of the unsatisfactory results that necessarily arise from an attempted discrimination of cases wherein the ultimate object of the contract is the delivery of the chattel, than the fact that the rule laid down by one of the greatest jurists of the land, is, as a rule of general application, far from satisfactory. " When the contract is a contract of sale," says Chief Justice Shaw, in Mixer v. Howarth, 21 Pick. 205, " either of an article then existing, or of articles which the vendor usually has for sale in the course of his business, the statute applies to the contract, as well where it is to be executed at a future time, as where it is to be executed immediately. But where it is an agreement with a workman, to put materials together and construct an article for the employer, whether at an agreed price or not, though in common parlance it may be called a purchase and sale of the article, to be completed in futuro, it is not a sale until an actual or constructive delivery and acceptance, and the remedy for not accepting is on the agreement." The elements of uncertainty introduced into this definition are, " articles which the vendor usually has for sale" in the first sentence, and " putting materials together and constructing an article" in the second part, which is used without qualification, and applicable alike to articles which the vendor usually has for sale, and to such as he has not. Thus it came that in that case the sale of a buggy completed to order was held not to be within the statute of frauds, although the vendor was a dealer in buggies and had them usually for sale, while in the subsequent case of Clark v. Nichols, 107 Mass. 547, the sale of plank, to be sawed thereafter to certain specified dimensions according to the vendee's order, was held to be a sale, and as such within the statute of frauds.

It was not until 1861 that the decision in Lee v. Griffin, 1 B. & S. 272, set the mooted question finally at rest in England, by the very simple definition that, " when the...