Elliott v. Pope

• Citation: 247 P. 796,42 Idaho 505
• Parties: WILLIAM M. ELLIOTT, Respondent, v. L. T. POPE, Appellant
• Decision Date: 08 May 1926
• Court: United States State Supreme Court of Idaho

247 P. 796

42 Idaho 505

WILLIAM M. ELLIOTT, Respondent, v. L. T. POPE, Appellant

Supreme Court of Idaho

May 8, 1926

CONTRACTS-AGREEMENT TO REDUCE CONTRACT TO WRITING-SALES-EVIDENCE.

1. Whether verbal arrangement, with agreement to reduce contract to writing, creates binding contract until so reduced depends on intention of parties, in view of C. S., sec. 5691, Rule 4 subd. 2.

2. Evidence held sufficient to support verdict that sale of personal property under oral contract with delivery to buyer was completed sale, passing title to buyer, notwithstanding agreement that contract should be reduced to writing.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Raymond L. Givens, Judge.

Action in claim and delivery. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs to respondent.

J. P Pope, for Appellant.

Where a party claims that a contract was completed before a contemplated written draft was signed, the burden of proof rests upon such party to establish such claim by a preponderance of the evidence. (Mississippi & Dominion Steamship Co. v. Swift, 86 Me. 248, 29 A. 1063; American Hawaiian S. S. Co. v. Willfuehr, 274 F 214; L. J. Upton & Co. v. Colbath, 122 Me. 188, 119 A. 384.)

Where some of the terms of a proposed contract are not settled, and it is agreed that a formal contract will be prepared and signed embodying all of the terms, there is no binding contract between the parties until such written contract is executed. (Methudy v. Ross, 10 Mo.App. 101; Locomotive Co. v. Bergdoll, 192 F. 447; note, 29 L. R. A. 433, 434; Eads v. Carondelet, 42 Mo. 113.)

Where the parties understand that the contract which is to be drawn and signed by both parties will constitute the agreement, there is no binding contract until reduced to writing and signed by both parties. (Morrill v. Tehema Consol. Min. Co., 10 Nev. 125; Morrow v. Southern Express Co., 101 Ga. 810, 28 S.E. 998; American Refrigerator Transit Co. v. Chilton, 94 Ill.App. 6; Savannah Ice Delivery Co. v. American Ref. Transit Co., 110 Ga. 142, 35 S.E. 280; McDonnell v. Coeur d'Alene Lumber Co., 56 Wash. 495, 106 P. 135; Meacham v. Pederson, 70 Wash. 479, 127 P. 114; Spinney v. Downing, 108 Cal. 666, 41 P. 797; Las Palmas Winery & Distillery v. Garrett & Co., 167 Cal. 397, 139 P. 1077; Sam Aftergut Co. v. Mulvihill, 25 Cal.App. 784, 145 P. 728; Congdon v. Darcy, 46 Vt. 478; note, 29 L. R. A. 434-436.)

Where want of mutuality is due to failure of minds to meet in the making of a contract, partial performance is unavailing to establish such contract. (Note, 8 L. R. A., N. S., 433.)

J. R. Smead, for Respondent.

The transfer of title from seller to purchaser is a question of the intention of the parties to be ascertained from all the circumstances of the case. (C. S., sec. 5690.)

Where, pursuant to a contract to sell, the seller delivers the goods to the buyer, it is presumed that he has "appropriated the goods to the contract" unconditionally; in other words, that the title has passed. (C. S., sec. 5691, Rule 4, par. 2; Williston, Sales, secs. 278, 279.)

On the question of when title passes, intention of the parties is the governing feature, which is a question of fact. If there is any doubt about it, the question is one for the jury. (Williston, Sales, secs. 261 and 262; Carlson v. Crescent etc. Co., 20 Idaho 794, 120 P. 460; Idaho Implement Co. v. Lambach, 16 Idaho 497, 101 P. 951.)

The rights of the parties in a transaction of sale must be determined from the circumstances of the case, and not from undisclosed purposes of the parties not from their understanding of the legal effect of their agreements or acts. (Foster v. Ropes, 111 Mass. 10.)

While delivery is not necessarily essential to the passing of title, it almost certainly shows an intent that the title shall pass with the delivery, unless title is expressly reserved by agreement. (Mechem, Sales, secs. 484-493; Williston on Sales, sec. 265, p. 533, and note 38.)

JOHNSON, District Judge. William A. Lee, C. J., and Taylor, J., concur. Wm. E. Lee, J., did not sit at the hearing and took no part in the decision. BUDGE, J., Dissenting.

OPINION

JOHNSON, District Judge.

--This is an action in claim and delivery to recover possession of a Smalley hay cutter and elevator, with one set of knives therefor.

Respondent, the plaintiff below, alleged the value of $ 800, and claimed damages for the wrongful 'detention of said property in the sum of $ 500. Appellant denied that he was unlawfully withholding possession of said property and claimed that he was the owner and entitled to the possession thereof, and by way of cross-complaint he set forth three separate causes of action, in each alleging ownership in himself, and he also alleged that respondent used and operated the machine from November 22, 1922, to December 24, 1922, and claimed $ 200 for its use during said period. He further alleged that the machine was damaged to the extent of $ 30.40 by its negligent, careless and improper use, and that respondent wrongfully detained the machine and one set of knives to the value of $ 68, also a tool-box and extra parts to the value of $ 25.

The jury returned a verdict in favor of the respondent for the possession of the property, found the value to be $ 800, and awarded him $ 200 damages for the unlawful detention thereof by appellant. This appeal is from the judgment entered on the verdict and also from an order denying a motion for a new trial.

Practically the only issue to be determined is whether or not the respondent was the owner of the property. The evidence discloses that the appellant had owned the property, and that his brother had an interest therein to the extent of $ 250. The machine had been purchased by appellant some three years before the commencement of this action. It had been used last by appellant and had stood outside exposed to the elements for some nine months. Desiring to dispose of said property he sought out respondent and began negotiations for the sale of the machine to respondent.

The respondent owned a tractor that would furnish motive power to run the machine. Conversations occurred between the parties on three different occasions up to the time respondent took possession of the machine at the request of appellant. The first talk between the parties was general in its character. Appellant stated the price, what the machinery consisted of, how much it would cost to cut hay, and how much there would be to cut. Not much was said at this first conversation as to terms. On the next occasion appellant came to respondent's place and the price and terms of purchase were arranged between the parties. Respondent was to pay for the machine out of the net proceeds of its operations at the rate of 40 [cent] a ton for hay cut until $ 250 was paid. After that it was to be half that much. The machine was to be paid for in two years. Respondent agreed to purchase the property on these terms. A few days after this appellant again sought out respondent at the latter's home. The parties again talked the matter over and appellant stated that he had purchased his brother's interest in the machine for $ 250 and that he wanted the machine used until this $ 250 was paid and after that respondent could have two years to pay the balance. The machine at this time was at Notus and appellant agreed to allow respondent $ 20 on the purchase price to bring the machine to respondent's place. Appellant produced a note for $ 650 made out in his favor and stated that he had to go to Kansas City and that he wanted respondent to sign the note, and respondent did sign the note. Respondent went to Notus and got the machine as directed by appellant.

It was also agreed prior to the signing of the note that respondent, whose brother is an attorney, should have his brother reduce the oral agreement to writing and that when appellant returned they would substitute the written agreement for the note. The note so signed contained no reservation as to title and is not a conditional sales note. The respondent is positive in his testimony that nothing was said as to the title remaining in appellant at any time. The evidence of appellant is not clear that he mentioned anything about his retaining title until after his return from Kansas City. After his return from Kansas City a written contract was prepared by respondent's brother which contained no reservation of title, while a written contract prepared by appellant's attorney contained a reservation of title.

The question before the jury was, did the parties to the sale agree that the title should remain in appellant until the property was paid for. In other words, was it a sale or a conditional sale. The evidence upon this point is conflicting. It was submitted by the court to the jury in the following instructions:

"You are instructed that it is your duty to determine whether plaintiff or defendant was entitled to the possession of the property in controversy at the time it was taken by defendant, on or about December 24, 1922, and in determining this question it is your duty to determine whether plaintiff and defendant made a complete and binding agreement covering the sale and possession of the property.

"There must be a meeting of the minds of the parties before a contract is complete. Where parties are merely negotiating as to the terms of an agreement to be entered into between them there is no meeting of minds while such agreement is incomplete.

"If you find from the evidence that a contract was completed and entered into between the plaintiff and defendant it will then be your duty to find what the contract is; and if you should find that, as a part of such agreement, it was understood between plai...