Gabriel v. Kildare Elevator Co.

• Decision Date: 14 February 1907
• Citation: 90 P. 10,18 Okla. 318,1907 OK 35
• Parties: GABRIEL v. KILDARE ELEVATOR CO.
• Court: Oklahoma Supreme Court

90 P. 10

18 Okla. 318, 1907 OK 35

GABRIEL v. KILDARE ELEVATOR CO.

Supreme Court of Oklahoma

February 14, 1907

Syllabus by the Court.

A delivery and acceptance of any part of the goods or chattels which are the subject of an oral agreement, and within the statute of frauds, at any subsequent time, and their acceptance, takes the contract out of the statute of frauds and makes valid the entire contract.

[Ed Note.-For cases in point, see Cent. Dig. vol. 23, Frauds Statute of, §§ 162-164.]

A petition which alleges the making of an enforceable contract and a breach by the defendant will entitle the plaintiff to nominal damages, and is sufficient to withstand a general demurrer.

[Ed Note.-For cases in point, see Cent. Dig. vol. 43, Sales, §§ 1161-1164.]

Error from District Court, Kay County; before Justice Bayard T. Hainer.

Action by the Kildare Elevator Company against Joseph Gabriel. Judgment for plaintiff, and defendant brings error. Affirmed.

Green & Martin, for plaintiff in error.

C. L. Pinkham, for defendant in error.

BURFORD C.J.

This cause comes up on a transcript, and the only question presented is the sufficiency of the petition to state a cause of action. The cause of action is one to recover damages for the breach of an oral contract to deliver corn. The plaintiff below, the Kildare Elevator Company, alleged that it entered into an oral agreement with the defendant Gabriel, by which he agreed to sell and deliver to the Kildare Elevator Company 200 bushels of ear corn at 30 cents per bushel, and 1,000 bushels of shelled corn at 31 cents per bushel; that pursuant to said agreement Gabriel delivered 52 bushels of corn, which was accepted and paid for at the agreed price; that Gabriel then refused to deliver any more of the corn, although the company was able, ready, and willing to take and pay for the same; that the plaintiff was damaged by such failure in the sum of $100, for which judgment was prayed. The cause was tried to a jury in the district court and a verdict was returned in favor of the plaintiff and judgment entered for $55 and costs. This proceeding is to reverse that judgment.

The plaintiff in error contends that the petition is fatally defective for two reasons: First, that the contract was within the statute of frauds, and the subsequent delivery and acceptance of part of the corn did not operate to take the contract out of the statute; and, second, that no sufficient allegations of damages are set out to entitle the plaintiff to recover. We think there is no merit in either contention. Our statute (section 780, Wilson's Rev. & Ann. St. 1903 p. 312) provides: "The following contracts are invalid, unless the same or some note or memorandum thereof be in writing and subscribed by the party to be charged, or his agent. *** Fourth: An agreement for the sale of goods, chattels, or things in action, at a price not less than fifty dollars, unless the buyer accept or receive part of such goods and chattels, or the evidences or some of them, of such things in action, or pay at the (time) some part of the purchase money. ***" This provision has been construed by almost every American court of last resort, and the authorities are uniform, to the effect that a delivery of any portion of the goods or chattels contracted for at any subsequent time and their acceptance makes the contract an enforceable one. In 1 Mechem on Sales, § 401, it is said: "It is not essential that the part delivery, acceptance, and receipt should be at the time of making the contract. The parol agreement, unless revoked, may stand for a mutual agreed proposition, at least for a reasonable time, where none is fixed, and the subsequent acceptance and receipt, while the proposition remains open, of a portion of the goods which were the subject of the parol negotiation, will make the entire contract effective." In Rickey v. Tenbroeck, 63 Mo. 563, the contract was an oral one for the sale of a lot of cattle, part to be delivered in one week and the remainder in installments as the buyer might require; and the court held...