Harvey v. St. Louis Butchers' Joint Stock & Benevolent Ass'n

• Decision Date: 31 October 1866
• Citation: 39 Mo. 211
• Parties: REUBEN V. HARVEY, Respondent, v. ST. LOUIS BUTCHERS' JOINT STOCK AND BENEVOLENT ASSOCIATION, Appellant.
• Court: Missouri Supreme Court

39 Mo. 211

REUBEN V. HARVEY, Respondent,

v.ST. LOUIS BUTCHERS' JOINT STOCK AND BENEVOLENT ASSOCIATION, Appellant.

Supreme Court of Missouri.

October Term, 1866.

Appeal from St. Louis Circuit Court.

For plaintiff the court gave the following instructions:

1. If the jury believe from the evidence that 97 head of cattle were verbally purchased by an agent of defendant at a price agreed on; that the cattle were examined by said agent personally and accepted at the time of said purchase, or at any other time prior to their delivery, and were directed by said agent (if he did not sooner call for them) to be driven to Dresden and placed in the cattle pens at said depot, and they were so driven and delivered at the time and place specified in the said verbal contract: and they further find that defendant, at any time before the loss of the cattle, exercised acts of ownership over said cattle by offering to sell the same, or any part thereof, as the property of said defendant, and that defendant by its agent brought or directed hay to be brought with a view to the shipment of said cattle from Dresden to St. Louis, and that after the delivery at Dresden and before the loss occurred the defendant's agent sent word to the plaintiff that * * * *, the jury may infer that said verbal contract was executed, and that there was an acceptance and actual receipt of said cattle by the defendant, and the title to said cattle thereby vested in the defendant; and if the jury so find, they will find for the plaintiff.

2. The jury are instructed that an acceptance, within the meaning of our statute, may be prior to the receipt of the cattle; and if the jury find in this case that there was a verbal sale of a specific lot of cattle as stated in the petition, and there was an acceptance of said cattle at the time of the sale, and that there was a subsequent delivery of said identical cattle at a place and time designated by the defendant, whereby the plaintiff parted with the possession of the cattle with the intent of putting an end to all his title, interest and possession in said cattle, such contract must be regarded as partially or fully executed and valid under our statute; and if the jury so find, they will find for the plaintiff.

3. A delivery of specific property under a verbal sale that has been examined and accepted by the vendee at a place described by the vendor, is equivalent to an actual receipt by the vendee within the meaning of our statute.

4. If the jury find from the evidence that the plaintiff had a specific lot of cattle which the defendant by its agent examined and agreed with the plaintiff to purchase and take at the price of $72.50 per head, then this constituted an acceptance of said lot of cattle prior to their delivery; and if the jury further find that at the time of such acceptance it was further agreed between the parties, that if the defendant by its agent or agents did not sooner call for said cattle that the plaintiff should on the 1st day of October, 1864, in pursuance of said purchase, deliver the same into the stock pens of the Pacific Railroad at Dresden for the defendant, and that the plaintiff did so deliver said lot of cattle into the said stock pens at the time appointed, and leave the same there for the defendant, abandoning his own possession thereof with the view to vest the title thereto in the defendant, then such acceptance as aforesaid and such delivery constituted an actual receipt of said cattle by the defendant within the meaning of the statute of frauds and entitles the plaintiff to a verdict in this case.

5. If the jury believe from the evidence that there was an acceptance and delivery of the cattle as contemplated in the first instruction for plaintiff, then they must find for plaintiff, notwithstanding the plaintiff may after suit brought have taken possession of a portion of the cattle, or money, the proceeds of their sale, with or without the consent of the defendant or its counsel.

The court found the issues for the plaintiff and assessed his damages at $3,883.10, it having been admitted by plaintiff that he had received the proceeds of some 28 head of cattle, and judgment was given accordingly.

Lackland, Cline & Jamison, for appellant.

The appellant claims that the facts in this case establish the contract to be clearly within the statute of frauds.

That delivery and acceptance must be established by some act of the parties; that no words, however significant they may be, are sufficient; and, in support of the position before this court, relies upon the following authorities--Shindler v. Houston, 1 const., 261; Kirby v. Johnson, 22 Mo. 354; Baldry et al. v. Parker, 2 Barn. & Cress. 37 (9 E. C. L. R. 16); Phillips v. Bustable, 2 B. & C. 511 (9 E. C. L. R. 162); How v. Palmer, 3 B. & A. 321 (5 E. C. L. R. 303).

The conversation between witness George W. Wallace and Mr. Morse, agent of the Butchers' Association at St. Louis, in nowise changes the character of the case; it occurred some weeks after the pretended delivery, and was of itself no acknowledgment that the cattle had either been delivered by the plaintiff or accepted by the defendant; and if it did, it was mere words which, as we have seen, can in no case, however strong they may be, amount to acts, and without which there can be no delivery within the established meaning of our statute of frauds--2 B. & C. 511; 3 B. & A. 321; 2 C. & C. 532; 22 Mo. 354; 1 Comst. 261; 2 Barn. & Cress. 37.

Glover & Shepley, (also) for appellant.

I. There was no delivery of the cattle at the time of the sale so as to take the transaction out of the statute of frauds.

The 6th section of the statute of frauds (R. C. 1855, p. 809) provides that no contract for the sale of goods * * * shall be allowed to be good except the buyer shall accept part of the goods as sold and actually receive the same, or give something in earnest to bind, &c. * * * * unless some note or memorandum thereof shall be in writing, &c.

II. The fact that the plaintiff drove the cattle to Dresden at the time agreed on in no respect alters the situation of the parties, or makes that a delivery which had not been a delivery before; for,

1. There was no acceptance, and without an acceptance there can be no delivery. This the statute requires in terms--Kirby v. Johnson, 22 Mo. 354; Lovelace v. Stewart, 23 Mo. 384; Shindler v. Houston, 1 Comst. (N. Y.) 261-7; Brown on Stat. Fr. § 317. The evidence of the driving to Dresden makes it a part of the bargain as much as the number and price, and requires it to be in writing just as much as any other part of the bargain. The danger guarded against by the statute is as great as to this part of the bargain as to any other part--all rest in words merely.

2. The lien of the vendor for the purchase money was at no time released, and unless that takes place there cannot be a delivery--Brown on Stat. Fr. § 317, and decisions in note 2; Shindler v. Houston, 1 Comst. 769-70; Tempest v. Fitzgerald, 3 Barn. & Ald. 680; Holmes v. Hockins 9 W. H. & G. 753; Lovelace v. Stewart, 23 Mo. 386-7. The only case that lends any support to the plaintiff's views is that of Harris v. Matthews, 3 Jurist, 1192.

3. There were no servants or agents of defendant there to receive or accept the merchandise. But, in addition to this, we say that that case is not law; and that in cases where the facts going to show a delivery and acceptance were much stronger than in that case, it has been held that they constituted no delivery--Actual v. Levy, 10 Bing, 384; Meredith v. Mugh, 2 Ell. & Bl. 364; Norman v. Phillips, 14 Mees. & W. 277; Shepherd v. Pressey, 32 N. H. 55; Spinner v. Hale, 30 Vt. 315; Tempest v. Fitzgerald, 2 Barn. & Ald. 680.

III. The acts of the plaintiff and his agent negative the idea of delivery. The plaintiff instead of leaving the cattle there at Dresden, drove them away back west to the place from whence they were taken

The case chiefly relied upon, in addition to the case in 3 Jurist, is the case of Cusack v. Robinson, 1 Best & Sm. 199. By an examination of that case, it will be found that at the time of the bargain the buyer had examined the particular lot of butter, selected it, and gave directions that the seller should apply to his agent, who would give directions how it should be sent to the warehouse to which he directed it to be sent in London; that that was a warehouse where the buyer received his butter, where he stored it, and from whence he sold it. It was therefore, in all respects, his warehouse for the transaction of his butter business. After it was received at this warehouse, the buyer gave an order on the warehouseman to deliver the butter to another party. Without going back to what occurred at the time of the bargain, one would think that the facts made out a pretty strong case both of delivery and acceptance.

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