Gardet v. Belknap

• Decision Date: 01 April 1851
• Court: California Supreme Court
• Parties: GARDET v. BELKNAP & WHITE.

1 Cal. 399

GARDET v. BELKNAP & WHITE.

Supreme Court of the State of California

April Term, 1851

April 1, 1851

APPEAL from the Superior Court of the City of San Francisco. The facts of the case are stated in the opinion of the Court.

E. Temple Emmet, for Plaintiff.

Elisha Cook, for Defendants.

By the Court, BENNETT, J. The suit was brought for goods sold and delivered. The facts of the case were, that the defendants called at the plaintiff's store, and agreed verbally to give him $1 37½ per gallon, for the quantity of brandy he had on hand of a particular brand and in good casks, and the plaintiff agreed verbally that the defendants might have it as soon as he could select and set apart the good casks. There was no evidence that the brandy contained in the good casks, was ever separated from other brandy which the plaintiff had. No bill of sale was made out by the plaintiff, no mark was placed upon the liquor sold to designate it as belonging to the defendants, no entry was made in the plaintiff's books, and no writing or memorandum of any kind was made of the sale.

Some days after the verbal agreement above mentioned, the plaintiff's clerk called at the store of the defendants, when one of the defendants asked him if he could not sell the brandy, to which the clerk replied that he could on account of the defendants, and went away. The next day the clerk called again, when the defendants disputed the quantity which it was claimed they had agreed to take, but stated that they were ready to receive the quantity agreed upon, if the plaintiff could deliver it according to agreement. The brandy had never been removed from the plaintiff's store, and was there destroyed by fire.

On this state of facts the defendants moved for a nonsuit on the grounds: 1st. That no note or memorandum of the contract had been signed by the defendants; 2d. That no part of the brandy had been delivered, and no part of the purchase money paid; and 3d. That something remained to be done by the parties for the purpose of designating the quantity of the brandy sold and the quality of the casks, by way of selecting and setting apart the liquor, before the title could pass to the defendants.

The Court denied the motion for a nonsuit; the cause was submitted to the jury, who found a verdict for the plaintiff in the sum of $1780.

It is unnecessary to consider all the grounds on which the motion for a nonsuit was made, as we are satisfied that it should have been granted on the ground that there was no delivery or part delivery of the property sold, so as to take the case out of the statute of frauds.

It is provided by section 13 of the Act concerning fraudulent conveyances and contracts, passed April 19, 1850, that every contract for the sale of any goods, chattels, or things in action, for the price of two hundred dollars or over, shall be void, unless: 1st, a note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged therewith; or, 2d, unless the buyer shall accept or receive part of such goods, or the evidences, or some of them, of such things in action; or, 3d, unless the buyer shall at the time pay some part of the purchase money.

No note or memorandum of the contract in this case was made in writing, and no part of the purchase money was paid, and, consequently, if the defendants neither accepted nor received a part of the brandy, the contract was void, and cannot be enforced. If there was no delivery, there could be no acceptance, and the question whether there was an acceptance, is the same as the question whether there was a delivery.

There was no pretence that there was an actual delivery of the brandy, but a constructive delivery is sought to be made out from the fact that one of the defendants asked the plaintiff's clerk if he could not sell the brandy, to which the clerk replied that he could on account of the defendants. It does not appear that the defendants...