Hoffman v. Wisconsin Lumber Co.
| Decision Date | 25 March 1921 |
| Citation | 229 S.W. 289,207 Mo.App. 440 |
| Parties | H. M. HOFFMAN, Appellant, v. WISCONSIN LUMBER COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Pemiscot Circuit Court.--Hon. Sterling H. McCarty Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Mayes & Gossom and McKay & Meddling for appellant.
(1) Whether or not there has been an acceptance is a question of fact for the determination of the jury. Ruediger v Dennis et al., 201 S.W. 943, 273 Mo. 72; Hollrah-Dieckmann Refrigerator and Fixture Co. v. St Louis House and Window Co., 186 Mo.App. 207; Tiedman on Sales, sec. 64, p. 75; Garfield v. Paris, 96 U.S. 563; Bass et al. v. Walsh, 39 Mo. sec. 192, p. 120; Houghtaling v. Ball et al., 19 Mo. sec. 84, p. 53; Cunningham v. Ashbrook, 20 Mo. 554-555, p. 350; Strong v. Dodds, 47 Vt. 354; Swafford v. Spratt, 93 Mo.App. 631, 635-636; Benjamin on Sales (Bennett's Notes), secs. 144-145-146-147. (2) And circumstances of the slightest probative force may be submitted to the jury for the purpose of determining whether there has been an acceptance. Brown on Statute of Frauds, secs. 318a, 319, 321; Swafford v. Spratt, 93 Mo.App. supra; Benjamin on Sales (Bennett's Notes), sec. 156a, pp. 134-5-6. (3) And the test for determining whether there has been an acceptance by the purchaser within the meaning of the Statute of Frauds is whether or not the vendor has lost his lien. Ruediger v. Dennis et al., 201 S.W. 943, supra, l. c. 943; Benjamin on Sales, sec. 187. (4) And the buyer may so far accept the goods as to do away with the objection of the Statute of Frauds, and yet may retain the right to examine the goods and to reject them if not of proper quality. 1 Reed on Statute of Frauds, sec. 280, p. 429; Strong v. Dodds, 47 Vt. 354; Smith v. Stoller, 26 Wis. 671. (5) We do not perceive how the Statute of Frauds can cut any figure in this case. We contend that the evidence unquestionably shows a delivery and acceptance sufficient to satisfy the statute. The hay was delivered at Caruthersville, put upon the car there, the place defendant directed it to be delivered; that was the end of appellant's duties. When appellant delivered the hay to the common carrier at Caruthersville, the place of delivery, as agreed upon, that constituted a delivery to defendant, and under the law, was an acceptance. The common carrier became the agent of the defendant. Plaintiff not only delivered to defendant the hay in question, but delivered to it the bill of lading which also constituted a delivery complete. If the kind of hay that defendant bought was delivered f. o. b. car at Caruthersville, that was sufficient under the statute. Montgomery v. Gann & Mathers, 51 Mo.App. 187; Hollrah-Dieckmann Refrigerator and Fixture Co. v. St. Louis House and Window Co., 171 S.W. 577, supra; Benjamin on Sales (Bennett's Notes), sec 147-148; Bass et al. v. Walsh, 39 Mo. sec. 192, supra; Cunningham v. Ashbrook, supra; Bloom's Son Co. v. Haas, 130 Mo.App. 122; Milling Co. v. Stanley, 132 Mo.App. 308; Lewis v. Imhof, 138 Mo.App. 370.
Ward & Reeves for respondent.
(1) There was no evidence in this case that the property was accepted by the respondent, and there was therefore no case made for the jury. Section 2784, R. S. 1909; Wainscott v. Kellogg, 84 Mo.App. 621; Parma v. Ellsberry, 79 Mo.App. 570; Sotham v. Weber, 116 Mo.App. 104; Ruediger v. Dennis, 199 Mo.App. 102; 29 Am. & Eng. Ency. of L. (2 Ed.), p. 984; 20 Cyc., p. 249. (2) "Acceptance cannot be inferred from the mere retention of the possession of the goods by the buyer for a time no longer than is necessary to enable him to examine their quality and quantity." 20 Cyc. 249; Tiedman on Sales, sec. 68.
Action to recover $ 306.05 for a car load of alfalfa hay. At the close of the testimony, a demurrer to the testimony was filed by defendant and sustained and the jury peremptorily instructed to return a verdict for defendant. Plaintiff has appealed.
The petition alleged the sale and delivery of the hay f. o. b. Caruthersville at the agreed price of $ 25 per ton amounting to 306.05.
The answer is a general denial, and the plea of the Statute of Frauds, and failure to deliver the kind of hay purchased. It is alleged that the value of the hay was more than $ 30 and the agreement to purchase was oral and no part of the hay received and accepted by the defendant and the sort of hay offered to defendant was not of the kind, grade or quality purchased.
The undisputed facts are that defendant by oral agreement purchased from plaintiff a car load of field cured, baled alfalfa hay at $ 25. per ton f. o. b. Caruthersville, to be shipped to defendant at Rives, Missouri, and to be paid for in two or three weeks. The plaintiff loaded the hay in a car at Caruthersville and billed it to defendant at Rives late Friday evening, received a bill of lading in defendant's name therefor, and delivered the bill of lading to defendant on Sunday following. The hay reached Rives safely Saturday about noon and remained in the car until the following Tuesday when it was unloaded by defendant onto the platform of the railroad company. The defendant, after an examination of the hay, rejected it and procured another car, loaded the hay into that car and notified the plaintiff that the hay would not be accepted. This refusal to keep and pay for the hay was on account of the fact that defendant's agent, who had the matter in charge and who had brought the hay, thought the hay was not of the quality bought and not on account of the fact that the contract for its purchase was an oral one.
The disputed facts related to the quality of the hay.
There was testimony by plaintiff that the car was furnished by defendant's direction, that it was a closed car, and that field baled hay would heat if left in a closed car too long, and that he had notified the defendant of that fact.
The trial court evidently gave the jury a peremptory instruction to find for defendant upon the theory that plaintiff was precluded from recovery by the Statute of Frauds.
The statute here involved, section 2170, Revised Statutes 1919, is as follows: "No contract for the sale of goods, wares, or merchandise, for the price of $ 30 or upward, 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, or unless some note or memorandum in writing be made of the bargain and signed by the parties to be charged with such contract or their agents lawfully authorized." This statute, except as to the value of the goods, is practically the same as the Seventeenth Section of the English Statute and statutes similar to these have been enacted in nearly, if not all, of the States in this country. The plain language of the statute is, that if the contract is oral and the price of the goods is $ 30 or more and no part of the purchase price is paid, the contract is not binding on either party until the buyer shall "accept part of the goods so sold and actually receive the same."
The discussion by the courts and text writers as to what is meant by the terms "accept" and "receive" as used in this statute has covered a wide range and resulted in many conflicts and inconsistencies, many of which will disappear on a careful reading of the facts on which the discussion in the different cases is based.
It is generally ruled that the goods are "received" when delivered and what will constitute delivery will satisfy that feature of the statute.
It is also generally ruled that in addition to what is understood by delivery of the goods in the ordinary sense by the seller, there must be an acceptance of them or some part thereof by the buyer but what will meet the requirements of the statute as to acceptance, has not been so well defined.
Some of the expressions on this question may be noted as follows:
A mere receipt of the goods by the vendee is not enough. There must be some act of the vendee showing that he has received them under the contract and this act must be sufficient to warrant a finding that he has received them as owner. [Dinnie v. Johnson, (N. D.) 77 N.W. 612.]
Any act which shows that the buyer is treating the goods as his own is sufficient to show acceptance even though there has been no examination and no opportunity to examine. [Snow v. Warren, 51 Mass. (10 Metcalf) 132.]
If the buyer does anything with the goods or to them which would be wrong if he were not the owner but right if he were the owner, this will imply acceptance. [Benjamin on Sales (3 Amer. Ed.), sec. 144.]
Any act done as owner will satisfy the statute. [Patterson and Holden v. Sargent, Osgood & Roundy, (Vt.), 77 A. 338.]
When the seller parts with all control over the goods and full control is assumed by the purchaser, the statute is satisfied whether there has been an inspection of the goods or not (Strong v. Dodds, 47 Vt. 348), and this does not destroy his right to inspect in a reasonable time and then reject, or more properly, rescind on account of the defect in the goods. [Same.]
The purchaser must receive and retain the articles delivered intending thereby to assume the title to them to constitute the acceptance mentioned in the statute. [Rodgers v. Phillips, 40 N.Y. 519.]
Mere words are not sufficient. There must be some act done signifying the intention of the seller to part with the title to the goods and the intention of the buyer to assume the ownership of them. [Shindler v. Houston, 1 N.Y. 261.]
If the buyer accepts the possession of the goods intending to keep them if on inspection they are found to comply with the contract as to quality and quantity,...
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