Groomer v. McMillan

• Decision Date: 02 May 1910
• Citation: 143 Mo. App. 612,128 S.W. 285
• Parties: GROOMER v. McMILLAN.
• Court: Missouri Court of Appeals

128 S.W. 285

143 Mo. App. 612

GROOMER v. McMILLAN.

Kansas City Court of Appeals. Missouri.

May 2, 1910.

Rehearing Denied May 23, 1910.

1. FRAUDS, STATUTE OF (§ 158) — SALE OF CATTLE — PAYMENT AVOIDING STATUTE — EVIDENCE.

Evidence held insufficient to show a payment avoiding the statute (Rev. St. 1899, § 3419 [Ann. St. 1906, p. 1963]) as to a sale of cattle.

2. FRAUDS, STATUTE OF (§ 95) — SALE OF PERSONALTY — PAYMENT AVOIDING STATUTE.

Part payment, to avoid the statute as to a sale of personalty, must be an absolute payment, but need not be in money, and the buyer's check will suffice if it is received by the seller and it is agreed that it is an absolute payment.

3. FRAUDS, STATUTE OF (§ 158) — SALE OF PERSONALTY — AVOIDANCE OF STATUTE — PAYMENT BY CHECK — EVIDENCE.

That a check was received by the seller as an absolute payment so as to avoid the statute must be clearly established.

4. PAYMENT (§ 21) — WHAT CONSTITUTES — ACCEPTANCE OF CHECK.

Accepting a check is not an agreement that it is itself a payment of the money named therein.

5. FRAUDS, STATUTE OF (§ 158) — SALE OF PERSONALTY — PAYMENT AVOIDING STATUTE — BURDEN OF PROOF.

The burden is on the buyer to clearly show that it was expressly agreed by the seller that a check was taken as an absolute payment and discharge of the price pro tanto so as to avoid the statute.

6. FRAUDS, STATUTE OF (§ 95) — SALE OF PERSONALTY — PAYMENT AVOIDING STATUTE — NATURE OF STATUTORY REQUIREMENT.

The statutory requirement that there shall be a payment on the price to avoid the statute is a requirement of the law as a matter of public policy, and it can neither be waived nor evaded by the parties, and, if the creditor accepts something other than money, it must be agreed and understood that it is in absolute payment and discharge of the price, or otherwise the statute is of no force or effect.

7. FRAUDS, STATUTE OF (§ 95) — SALE OF PERSONALTY — AVOIDANCE OF STATUTE — PART PAYMENT BY CHECK.

A seller, desiring to make a valid contract under the statute with a buyer who has no money with him, might expressly agree to take his check in absolute discharge of that much of the price; but if he did so he would have to take the risk of getting the money, provided, of course, the buyer had funds and a right to draw the check when delivered.

8. PAYMENT (§ 22) — WHAT CONSTITUTES — ACCEPTANCE OF CHECK.

When a check is given in settlement of a debt, the law implies that it is not to constitute an absolute discharge till it is presented by the creditor and paid or certified on such presentment, or it is shown that the creditor failed to present it within a reasonable time, and that the bank or drawee subsequently failed to the drawer's damage, but the parties may agree that it shall be taken as an absolute payment.

9. FRAUDS, STATUTE OF (§ 94) — SALE OF PERSONALTY — AVOIDANCE OF STATUTE — PART PAYMENT — "EARNEST."

The statutory meaning of the word "earnest" is part payment, and it must be a real payment.

10. FRAUDS, STATUTE OF (§ 82) — CONSTRUCTION — SALE OF "GOODS, WARES AND MERCHANDISE."

Live cattle are embraced within the words "goods, wares, and merchandise," as used in Rev. St. 1899, § 3419 (Ann. St. 1906, p. 1963). prohibiting verbal contracts for the sale thereof for a price of $30 or more.

Error to Circuit Court, Dekalb County; Alonzo D. Burns, Judge.

Action by A. M. Groomer against E. S. McMillan. There was a judgment for plaintiff, and defendant brings error. Reversed.

Hewitt & Hewitt, for plaintiff in error. William M. Fitch, for defendant in error.

ELLISON, J.

Plaintiff brought this action to charge defendant with damages on account of a breach of a contract of sale of cattle. He recovered judgment in the trial court.

The contract was verbal, and the cattle largely exceeded the value of $30. For that reason defendant interposed the statute of frauds (section 3419, Rev. St. 1899 [Ann. St. 1906, p. 1963]), which provides that no verbal contract for the sale of goods, wares, and merchandise, for a price of $30 or more shall be allowed to be good unless the buyer shall accept part of the goods so sold and actually receive the same, or give something in earnest to bind the bargain, or in part payment. But plaintiff claims that he made a payment at the time of making the contract, by giving to defendant his check on a bank for $100. His testimony on this head was as follows: "I came back to where he (defendant) was plowing corn, and told him I would take the cattle, and would state the contract over so there would be no mistake; I was to have the cattle at my request the last half of September, any time I called for them after the 15th. They were to be driven to Mr. John Graham's and weighed, at $4 per hundred, the shrink to be 3 per cent. He (defendant) said, `Yes.' I wanted to know if a check for $100 would be money enough, and he said it would. I wrote him out a check for $100 and put on the check, `For twenty steers.' I asked him if that check was all right, and he said it was. Then I turned back and come home." Defendant kept the check for several weeks, and finding he and plaintiff were at a misunderstanding as to the obligations of the contract, he tore it up in plaintiff's presence and threw the pieces on the ground.

In our opinion this evidence did not show a payment. The law is that the payment, to be effective in avoidance of the statute of frauds, must be an absolute...