Farmer v. Gray
| Decision Date | 06 August 1884 |
| Citation | 20 N.W. 276,16 Neb. 401 |
| Parties | FARMER v. GRAY. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Error from Lancaster county.
Lamb, Ricketts & Wilson, for plaintiff.
A. C. Platt and Harwood, Ames & Kelly, for defendant.
On or about the ninth of June, 1882, the plaintiff, at Lincoln, Nebraska, purchased by sample of one of the defendants' traveling men certain goods to the amount in value of about $300. The defendants are wholesale grocers in the city of Chicago, and on or about the fifteenth of that month shipped all of the goods ordered, except one sack of rice, over the Rock Island & Pacific Railway to the plaintiff. About the twenty-first of that month the rice was shipped over the same route to the plaintiff, and was accepted and paid for. The goods first shipped were partially destroyed and greatly damaged in a cyclone at Grinnell, Iowa, and reached Lincoln in a bad condition, and the plaintiff refused to receive them. He afterwards received the rice, and paid for it. This action is brought to recover for the goods first shipped. The defense consists of certain denials: that the goods did not correspond with the samples; that the contract was verbal only, and no note or memorandum in writing was made of said sale, the value being more than $50; and that no part of the goods were accepted, etc.
A set-off for the sum of $15.60 is also pleaded, but which need not be considered. On the trial of the cause the jury returned a verdict for the sum of $277.60, upon which judgment was rendered. It is claimed on behalf of the plaintiff that the contract is within the statute of frauds, being oral. All the testimony, however, shows that but one order was given for the goods, including the rice; that in fact the order for the goods was entire. This being so, the acceptance of a part of the goods takes the case out of the statute of frauds. In Champion v. Short, 1 Camp. 53, the defendant, a resident of Salisbury, ordered from the plaintiff, a wholesale grocer of London, “half a chest of French plums, two hogsheads of raw sugar, and one hundred lumps of white sugar, all to be sent down without delay.” The plums and raw sugar were sent to the defendant almost immediately; but the white sugar, not coming so soon as expected, the defendant countermanded it, and gave notice to the plaintiff that, as he desired the two sorts of sugar together, and not having received the white, he would not accept the raw. He used the plums, and the action was brought to recover the price of the plums and raw sugar. It is said: ...
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