Eiseley v. Malchow

• Decision Date: 01 July 1879
• Citation: 2 N.W. 372,9 Neb. 174
• Parties: CHARLES F. EISELEY AND OTHERS, PLAINTIFFS IN ERROR, v. WILLIAM MALCHOW, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

2 N.W. 372

9 Neb. 174

CHARLES F. EISELEY AND OTHERS, PLAINTIFFS IN ERROR, v. WILLIAM MALCHOW, DEFENDANT IN ERROR

Supreme Court of Nebraska

July 1, 1879

ERROR to the district court for Dodge county. The facts are as follows:

In 1873 Levi and Andrew Baker, partners, bought of the firm of Case & Co. a threshing machine, for which they gave their notes amounting to about $ 600. These notes came into the possession of William Malchow, who had acted as the agents of Case & Co. in making the sale of the machine to the Bakers. Malchow employed one Reynolds to collect the amount due on the notes, and Reynolds, carrying out that object, entered into an agreement with the Bakers, by which he was to take from them certain property, including the machine in question, and give them a credit of something over $ 300 on the notes. After this sale Thomas Robinson, a constable levied on and sold the machine in question under an execution issued upon a judgment rendered in favor of the Wheeler Seeder Co. against Levi Baker and Eiseley & Rink, the latter giving Robinson, the constable, an indemnifying bond for that purpose. After the sale of the machine upon said execution Malchow commenced an action on the note given by the Bakers and recovered a judgment against them for $ 844.27. Subsequently Malchow brought this action against Eiseley & Rink and Robinson, the constable, to recover the value of said machine. At the trial before POST, J., the following instructions were given to the jury:

1. The court instructs the jury that if they believe from the evidence that the machine in question was the property of Levi and Andrew Baker as partners, and that the debt due from said Baker to the plaintiff was a debt upon said partnership to the plaintiff, then such debt would have preference of payment over the individual debts of either of said partners out of the partnership property; that a levy upon partnership property for the satisfaction of the individual debt of either of such partners can only be made on the interest of such partners in the partnership property, and can only attach to the residue of such interest remaining after the partnership debts are paid.

2. The court instructs the jury that if from the evidence in this case they believe that Levi and Andrew Baker were indebted to the plaintiff, and that the plaintiff, through his agent Wilson Reynolds, agreed to purchase of the said Bakers the threshing machine in question, in connection with other property, for a price to be credited in gross upon notes held by by plaintiff against said Bakers, and if from the evidence the jury further believe that it was the intention of the said Bakers and the plaintiff, by said transaction, to pass the title to the machine in question to the plaintiff, and the plaintiff took possession thereof, then the jury will find the property in the machine to be in the plaintiff notwithstanding the jury may believe that the price agreed upon was not given on the notes according to the agreement.

A verdict and judgment having been rendered in favor of Malchow, the defendants Eiseley & Rink and Robinson brought the cause here by petition in error.

The ninth section of the statute of frauds, invoked by plaintiffs in error as applicable here, is as follows:

"SEC. 9. 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 be made in writing, and 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." Gen. Stat., 393.

AFFIRMED.

Marlow & Munger, for plaintiffs in error.

1. If the contract of sale between Reynolds (acting for Malchow) and Bakers falls within this statute, then Malchow acquired no title or interest in and to the property, and could not maintain the action against defendants. No memorandum of the contract of sale was made. Reynolds says he gave a receipt for the money; what the contents of the receipt was we are not informed. A simple receipt does not answer the terms of the statute. It is essential that the names of both vendor and vendee appear, the price stipulated, a description of the property, and all the terms of the contract. Browne on Statute of Frauds, Chapter 18. Story on Sales, §§ 265, 266. Grafton v. Cummings, Central Law Jour., May 9, 1878. Although Reynolds agreed to credit the $ 350 on the notes he never did so, and to fulfill the terms of the statute the credit must have actually been made. Brabin v. Hyde, 32 N.Y. 523. There was no acceptance and receiving of the goods, or any part thereof, sufficient to take the case out of the statute. Reynolds says that when the suit was brought against the Bakers none of the property had been received, and this suit against the Bakers was brought subsequent to the levy and sale by Robinson. The machine in question was standing on the farm of a third party; in some cases, perhaps, it would amount to a constructive delivery or change of possession, but such is not sufficient to answer the statute. There must be either an actual deliverance and acceptance or a symbolical deliverance and acceptance--some act of the party in addition to mere words. Shindler v. Houston, 1 Comstock, 261. Browne on Statute of Frauds, § 318.

2. The court erred in admitting the question to witness Andrew Baker, and his answer thereto. Goodrich v. McClary, 3 Neb. 123.

3. The verdict of the jury does not pass upon and dispose of all the material issues of the case. Rouge v. Dawson, 9 Wis. 246. The verdict is special. The jury find the property to the machine to be in plaintiff, and the amount of plaintiff's damages, but they do not find upon the issue as to whether the property was converted by defendants. It may be true, as the jury have said, that the property was plaintiff's, that the plaintiff has sustained damages, but judgment could not properly be rendered against defendants unless defendants had converted the property, and upon this point the verdict is entirely silent.

Marshall & Sterett, for defendants in error.

1. An execution levied upon partnership property for the individual debt of one of the partners must, to make it a good levy, be made upon the interest of such partner in the partnership. The sale must be made of such interest. It will attach only to the interest of such partner remaining after the adjustment of the partnership affairs and the payment of partnership debts. Specific articles of partnership property, or moieties thereof, cannot be sold in such cases. Collyer on Partnership, § 832, p. 574, and note 1.

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