Ellis v. Denver, L. & G. R. Co.

• Decision Date: 13 January 1896
• Citation: 7 Colo.App. 350,43 P. 457
• Parties: ELLIS v. DENVER, L. & G.R. CO.
• Court: Colorado Court of Appeals

43 P. 457

7 Colo.App. 350

ELLIS v. DENVER, L. & G.R. CO.

Court of Appeals of Colorado

January 13, 1896

Appeal from district court, Arapahoe county.

Action by Daniel B. Ellis against the Denver, Lakewood & Golden Railroad Company. There was a judgment for defendant, and plaintiff appeals. Affirmed.

Ellis the appellant, as the assignee of one B.R. Dell, brought suit against the railroad company on the following contract "December 17, 1890. The Denver, Lakewood & Golden Railroad Company, Denver, Colo.--Dear Sirs: I will deliver f.o.b. cars at Denver, Colo., you to pay the freight, and deduct it from purchase price, forty thousand (40,000) dry red spruce ties, 6 1/2 to 8 inches thick, 6 to 9 inch face, 8 foot long, sawed ends, 15 per cent. to be 5 to 6 inch face, ties to be 60 cents each, and culls 40 cents each. Dry and green white spruce, same dimensions as above 50 cents each. Red spruce ties in sets at $20.00 per thousand foot, board measure. You to pay me for all ties and lumber delivered in Denver on the 15th day of each month for all delivered the preceding calendar month. You to send me word when to commence to ship. First shipment not to be later than the first of February next." We are not particularly concerned with the pleadings, and the only thing important to state is the failure of the plaintiff to state the terms or the time or the occasion of his offer to fulfill, which is averred generally in the complaint. There were several defenses interposed, but the decision turns on none of them. When it came to the proof, the defendant waived the objections respecting the paper offered as evidence of the contract and any proof of the authority of the person who had assumed to act on behalf of the company. Its entire defense was grounded on the statute of frauds. There was no performance by either. There was a tender of proof of an offer by Dell to deliver. The trial court agreed with the defendant as to the applicability of the statute. The plaintiff made several other offers of proof. These embraced the number of red spruce ties cut, the number of white spruce, the number of culls, the refusal of the company to carry out the contract that 32,000 red spruce and 8,000 white spruce ties were to be cut. These are the only ones to which reference will be made, or which at all bear on the matters which will be discussed. Notwithstanding the evidence tendered, the court refused to receive it, adjudged the contract void under the statute of frauds, and a verdict was taken for the company, and from the judgment entered thereon an appeal was taken to this court.

Rogers Cuthbert & Ellis, for appellant.

Yeaman & Gove, for appellee.

BISSELL J.

This case legitimately proffers one or two phases of a most interesting and difficult question, which has been raised in many actions wherein the contract which was the subject of the suit was claimed to be within the statute of frauds. When the contract concerns the sale of goods and chattels, it has frequently been necessary to determine whether the character of the thing sold was to be ascertained by its form at the time fixed for delivery, or to be settled by its condition as it might have been at the date of the execution of the contract. This query has been subject to modification in certain classes of cases, wherein there was an agreement to perform work and labor on the chattel, or there was some necessity to do work whereby there would be a change in the essential nature or form of the material. We shall not enter on this discussion. We shall confine the case to very narrow limits. The true criterion by which to settle the applicability of the statute may possibly be found in the situation at the date fixed for delivery. Whether this be or be not true, there can be no doubt the present contract is in no sense brought within the precedents which hold the statute inoperative where work or labor is to be done to reduce the material to the form in which it is to be delivered to the vendee. Cooke v. Millard, 65 N.Y. 352; Finney v. Apgar, 31 N.J.Law, 266; Downs v. Ross, 23 Wend. 269; Gardner v. Joy, 9 Metc. (Mass.) 177; Lamb v. Crafts, 12 Metc. (Mass.) 353; Bacon v. Parker, 137 Mass. 309; Edwards v. Railway Co., 48 Me. 379; Brown v. Sanborn, 21 Minn. 402; Prescott v. Locke, 51 N.H. 94. The present case is entirely analogous in all of its leading features to those which have been cited. Assuming it was within the contemplation of the parties that the ties should be prepared from standing timber, or from logs which had been cut, the work to be done was in no sense the personal labor of the contracting party; and, so far as it may be controlled by the terms of the contract, the agreement could as well have been fulfilled by the purchase and delivery of the ties specified as by their preparation from logs or the reduction of standing trees to the form of ties. It was not agreed between them that Dell should cut, manufacture, and deliver, but it was simply an agreement to deliver so...