Farmer v. Gray
| Decision Date | 06 August 1884 |
| Citation | 20 N.W. 276,16 Neb. 401 |
| Parties | V. E. FARMER, PLAINTIFF IN ERROR, v. GRAY, BURT & KINGMAN, DEFENDANTS IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Lancaster county. Tried below before POUND, J.
REVERSED AND REMANDED.
Lamb Ricketts & Wilson, for plaintiff in error, cited: Benjamin Sales, 134. Atwood v. Lucas, 53 Me. 508. Young v Wakefield, 121 Mass. 91.
Harwood & Ames and A. C. Platt, for defendants in error, cited McKnight v. Dunlop, 5 N.Y. 537. Jenness v. Wendall, 51 New Hamp., 63. Benjamin Sales, 167-170. 4 Wait's Actions and Defenses, 478.
On or about the 9th 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 15th 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 21st of that month the rice was shipped over the same route to the plaintiff. The goods first shipped were greatly damaged and partially destroyed 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 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 $ 277.63, upon which judgment was rendered.
1. It is claimed on behalf of the plaintiff in error 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 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 as 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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