Galbraith v. Holmes
| Decision Date | 14 April 1896 |
| Docket Number | 1,726 |
| Citation | 43 N.E. 575,15 Ind.App. 34 |
| Parties | GALBRAITH ET AL. v. HOLMES ET AL |
| Court | Indiana Appellate Court |
From the Decatur Circuit Court.
Judgment affirmed.
C Ewing and D. Wilson, for appellants.
S. A Bonner, M. D. Tackett, B. F. Bennett, M. C. Jenkins and J. H Parker, for appellees.
LOTZ, J. GAVIN, C. J., did not participate in this decision.
The appellants sued the appellees to recover the possession of a carload of wheat. On the trial of the cause appellants gave evidence which tended to prove these facts: The appellants were millers engaged in manufacturing flour and corn meal. The appellee, Calvin Holmes, was a dealer in grain, wheat and flour. The appellants had sold to Holmes a bill of flour and there was a balance due from him to them of $ 109.40. This balance was represented in an open account. The appellants' mill was situated at the town of Burney, and Holmes did business at a place known as Letts Corner, the two places being several miles apart. On the 29th of October, 1894, the appellants called upon Holmes, at his place of business, and proposed to buy of him a carload of wheat at 46 cents per bushel, and to give in payment therefor the account and other flour and cornmeal at prices and in quantities sufficient to pay for the whole of the carload of wheat. Holmes stated that he had a carload of wheat at Brewersville, another station on the railroad several miles distant; that he would accept the proposition and let them have the carload at Brewersville. It was agreed that Holmes should ship this carload to such point as appellants might designate, and send the bill of lading to them. Holmes also furnished appellants with sacks in which to ship the flour to him, and appellants took such sacks with them to their mill. No note, contract, or memorandum of this transaction was made and signed by any of the parties, nor was there any receipt given for the account, nor any entry or credit therefor ever made upon the books of appellant; nor did the appellants, before the bringing of this suit, ever obtain the actual possession of this carload of wheat, nor did they ever deliver any flour or meal or give anything of value to Holmes as a part of such transaction or in pursuance of such contract. On the next day after the transaction, Holmes made an assignment of his property for the benefit of his creditors, and the carload of wheat came into the possession of his assignee at the station of Brewersville.
At the conclusion of the evidence, the court instructed the jury to return a verdict for the appellees. The appellants insist that this action of the court was erroneous; that the question of whether or not there was a valid and enforcible contract entered into should have been left to the jury.
The general rule is that if there be any evidence having any legal weight upon any controverted fact, the parties are entitled to go to the jury thereon. It is also settled that the court may in all proper cases direct the verdict. The instruction of the trial court in this case was evidently based upon the theory that the contract came within the statute of frauds. Section 6635, R. S. 1894 (4910, R. S. 1881), provides that "No contract for the sale of any goods, for the price of $ 50.00 or more, shall be valid, unless the purchaser shall receive part of such property, or shall give something in earnest to bind the bargain or in part payment, or unless some note or memorandum in writing of the bargain be made, and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized."
The appellant insists that the contract is taken out of the operation of this statute for two reasons: (1) That the agreement to credit the amount due from Holmes to them...
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