Galvin v. MacKenzie

• Decision Date: 26 October 1891
• Citation: 27 P. 1039,21 Or. 184
• Parties: GALVIN v. MACKENZIE.
• Court: Oregon Supreme Court

27 P. 1039

21 Or. 184

GALVIN v. MACKENZIE.

Supreme Court of Oregon

October 26, 1891

Appeal from circuit court, Multnomah county; ERASMUS D. SHATTUCK Judge.

Action by E. Galvin against Mrs. Dr. Kenneth A.J. MacKenzie. Verdict and judgment for plaintiff. Defendant appeals. Affirmed.

(Syllabus by the Court.)

The object of the words in the clause, subdivision 5, 785 commonly called the "Statute of Frauds," "unless the buyer accept and receive some part of the personal property," is to require such proof of the existence of the contract as will be an impediment to fraud and perjury.

To constitute an acceptance there must be a delivery of the goods by the vendor with the intention of vesting the right of possession in the vendee, and there must be a receipt and acceptance by the latter with the intention of taking possession as owner.

Geo. H Durham and H.G. Platt, for appellant.

John U. Smith, for respondent.

LORD J.

This is an action to recover money upon an oral agreement to furnish the defendant with two dresses, and for which she was to pay the several sums specified, when completed. The answer of the defendant alleges that the dresses were misfits, and that they were never received and accepted by her, which is denied in the reply. On the trial, as the agreement was oral, the defendant relied upon the statute of frauds to exclude the testimony for the plaintiff, and also, after the plaintiff rested, moved for a nonsuit for the same reason which the court overruled on the ground that there was some evidence for the jury to consider whether the dresses were received and accepted under the contract. The contention for the defendant was that the agreement in question was for the sale of personal property at a price of more than $50, and was within subdivision 5, § 785, Hill's Code, otherwise called the "Statute of Frauds," and was not enforceable; or that no evidence of it was admissible, unless the defendant had accepted or received the property, or paid some part of the purchase money. The court adopted the view of the law that the agreement was for the sale of personal property at a price exceeding $50, but left it to the jury to determine from the evidence whether or not there had been any receipt and acceptance of the dresses as would take it out of the statute. As the verdict was for the plaintiff, it must be presumed that there was a receipt and acceptance of the dresses under the contract, upon the evidence submitted. Upon this state of the record, the only question raised for the defendant and appellant is that there is no sufficient evidence of receipt and acceptance of the dresses to show compliance with the terms of the statute. The trial court and counsel for the defendant are in accord that the agreement was for the sale of personal property, and within the statute, but disagree as to the sufficiency of the subsequent acts done by the parties to comply with its terms. We are not, therefore, called upon to determine whether the agreement in this case should be considered as a contract for the sale of personal property and, as such, within the statute, or a contract for services and materials, and, as such, not within that statute. That is a mooted question, upon which there is an irreconcilable conflict of authority, and which we are not required nor requested to consider, unless the evidence is wholly inadequate to prove the receipt and acceptance of the dresses, and the trial court erred in submitting it to the jury. In that event, the counsel for the plaintiff and respondent is prepared to urge that the agreement is not a contract of sale, but a contract for labor; in a word, that the facts disclose that the dresses were to be manufactured especially for the defendant, and upon her special order, and not for the general market; and within the rule established by many highly respectable decisions the contract is not within the statute. Assuming, for present purposes, that the court adopted the proper view of the law as applied to the facts, we are to consider whether there was evidence which would entitle the jury to find that there was such acceptance and receipt of the property as would satisfy the provisions of the statute. It is said that the clause, "unless the buyer accept and receive some part of the personal property," is intended to require such proof of the existence of the contract as will be an impediment to fraud, perjury, and mistake. Shindler v. Houston, 1 N.Y. 261. To constitute an acceptance within the meaning of this provision the purchaser must so deal with the property as to prove that he acknowledged the existence of the contract. There must be some act on his part plainly recognizing the existence of the contract, and that the property has been received in accordance therewith. The property must be completely transferred, which includes both delivery by the vendor and acceptance by the vendee. There must be a delivery of the goods by the vendor with an intention of vesting the right of possession in the vendee, and there...