Fontaine v. Bush

• Citation: 41 N.W. 465,40 Minn. 141
• Parties: FONTAINE ET AL. v BUSH ET AL.
• Decision Date: 31 January 1889
• Court: Minnesota Supreme Court

40 Minn. 141

41 N.W. 465

FONTAINE ET AL.vBUSH ET AL.

Supreme Court of Minnesota.

Jan. 31, 1889.

(Syllabus by the Court.)

1. A defendant, denying in his answer the making of the contract upon which the action is brought, may avail himself of the defense that the agreement was void under the statute of frauds.

2. An acceptance, to be effectual to avoid the effect of the statute of frauds, as to oral agreements for the sale of personal property, must be more than the mere receipt of the goods delivered. Even though the buyer (not yet having accepted the goods) designates a common carrier to whom the seller is to deliver the goods for transportation, and although the goods are so delivered and transported to the buyer, that alone is insufficient to constitute acceptance.

Appeal from municipal court, City of Minneapolis; BAILEY, Judge.

G. D. Emery, for appellants.

Ferguson & Kneeland, for respondents.

DICKINSON, J.

This action is for the recovery of the price (more than $50) of a large quantity of potatoes alleged to have been sold by the plaintiffs to the defendants at an agreed price. The answer denied the sale. The court, trying the cause without a jury, found in favor of the defendants, upon the ground that the case was within the statute of frauds.

The mere oral agreement was void, under the statute, and the denial of the sale in the answer was sufficient to enable the defendants to avail themselves of that defense. Tatge v. Tatge, 34 Minn. 272,25 N. W. Rep. 596, and 26 N W. Rep. 121. The case justified the finding of the court that there had been no acceptance on the part of the defendants satisfying the requirement of the statute. The circumstances to which attention should be directed in this connection are shown to have been as follows: The agreement was made orally, at Crookston, between the plaintiffs and one Storms, an agent of the defendants. The agreement was for the sale of a car-load of potatoes, at 45 cents a bushel, delivered on the track at Crookston, billed to the defendants at Minneapolis. The plaintiffs were authorized to draw on the defendants for the price when the potatoes were shipped. The potatoes were shipped by rail a few days after the agreement. When the car reached Minneapolis the defendants found the potatoes badly frozen. Thereupon the defendants telegraphed to the plaintiffs, informing them of that fact, and asking: “Shall we put in cellar for you?” The plaintiffs responded by telegraph: “Handle to best advantage; cost forty here.” The defendants then put the potatoes in a warehouse, picked them over, and sold them. After a part of them had been sold the defendants remitted what had been received for them to the plaintiffs, with a letter indicating that they were thus dealing with the potatoes, not as purchasers, but for the benefit of the plaintiffs.

“Unless the buyer accepts and receives” is the language of our statute of frauds, specifying cases excepted from its operation. The acceptance, which under the statute is effectual to bind the purchaser, is distinguishable from a mere receipt of goods delivered, although the latter might be sufficient to transfer the title, in case there were a valid contract. In the case of an agreement void by force of the statute, an effectual acceptance can by inferred only from some act or course of conduct on the part of the buyer manifesting a present intention to receive the goods in performance of the agreement, and to appropriate them as his own. It implies on the part of the buyer, or of an authorized agent, the exercise of volition,-the determination to receive as his own, by purchase, property to the purchase of which he was not before bound. Taylor v. Mueller, 30 Minn. 343,15 N. W. Rep. 413;Simpson v. Krumdrick, 28 Minn. 352,10 N. W. Rep. 18;Caulkins v. Hellman, 47 N. Y. 449;Cooke v. Millard, 65 N. Y. 352, 367;Atherton v. Newhall, 123 Mass. 141. Hence a delivery to a common carrier not designated by the buyer will not satisfy the requirement of the statute. That does not show an acceptance on the part of the vendee....