Delventhal v. Jones

• Decision Date: 31 October 1873
• Citation: 53 Mo. 460
• Parties: J. W. DELVENTHAL, et al., Appellants, v. BENJAMIN F. JONES, Respondent.
• Court: Missouri Supreme Court

53 Mo. 460

J. W. DELVENTHAL, et al., Appellants,

v.BENJAMIN F. JONES, Respondent.

Supreme Court of Missouri.

October Term, 1873.

Appeal from St. Charles Circuit Court.

E. A. Lewis, for Appellants.

I. The evidence of defendant's claim was inadmissible. The mere delivery of the sacks by plaintiffs to defendant was no acceptance or receipt of the goods purchased, nor was any such part performance by either party, as could take the case out of the statute of frauds. (W. S., 657, § 6; Harvey vs. Butcher's Ass'n., 39 Mo., 211; Cunningham vs. Ashbrook, 20 Mo., 562; Hatch vs. Bayley, 12 Cush., 27.)

Frank T. Williams, for Respondent.

I. The delivery of the sacks by plaintiffs to defendant was sufficient to take the case out of the statute of frauds.

II. The depositions were properly admitted in evidence, no objection having been made by plaintiffs before defendant offered to read them upon the trial. Plaintiffs ought to have taken their objections by a motion to suppress the depositions before going into the trial.

SHERWOOD, Judge, delivered the opinion of the court.

The plaintiffs brought suit before a justice of the peace against the defendant, on an account for $26.70 for sacks sold and delivered to him.

He admitted the correctness of the demand, but set up as an off-set thereto, that he had sold to plaintiffs 500 bushels of oats, at 40 cents per bushel; that they were to furnish the sacks in which to place the oats, and that the oats were then to be delivered to plaintiffs; that the sacks were thus furnished and filled with the oats, but plaintiffs, upon the oats being hauled to the point agreed upon, declined and refused to accept the same, by which refusal defendant was damaged in the sum of $64 91, for which he asked judgment, after the deduction of the amount confessed to be due plaintiffs.

The defendant had a verdict before the magistrate, the plaintiffs appealed to the Warren Circuit Court, from whence the venue was changed to the Circuit Court of St. Charles county, where the defendant again had a verdict and judgment accordingly, to reverse which judgment this cause comes up here on appeal.

During the progress of the second trial, the defendant was introduced as a witness, and it was offered to prove by him, that he had sold the plaintiffs the oats at 40 cents per bushel; that plaintiffs were to furnish the sacks, which they did; that defendant offered to deliver the oats to plaintiffs in pursuance of the agreement, but that they declined and refused to accept the same, and the defendant thereupon sold the oats for the best price that could be obtained, &c., &c.

The plaintiffs objected to the introduction of this testimony on the ground (among others), that the alleged contract of sale was for goods exceeding in value the sum of $30; that there was no part of the purchase price paid, no note or memorandum in writing signed, no part of the oats delivered, and nothing given in earnest to bind the bargain, and that therefore the statute of frauds barred the defendant's set off.

The court overruled these objections, permitted the defendant to testify as above, and the plaintiffs excepted.

The court also allowed the defendant to read in evidence the deposition of one Merriman, to the reading of which the plaintiffs likewise objected, on the ground of various informalities, but their objections were overruled and they again excepted, and after verdict called the attention of the court to the error complained of by ...