Hudson Furniture Co. v. Freed Furniture & Carpet Co.

• Decision Date: 20 March 1894
• Docket Number: 430
• Citation: 36 P. 132,10 Utah 31
• Parties: HUDSON FURNITURE COMPANY, APPELLANT, v. FREED FURNITURE & CARPET COMPANY, RESPONDENT
• Court: Utah Supreme Court

36 P. 132

10 Utah 31

HUDSON FURNITURE COMPANY, APPELLANT, v. FREED FURNITURE & CARPET COMPANY, RESPONDENT

No. 430

Supreme Court of Utah

March 20, 1894

APPEAL from the district court of the third judicial district, Hon Chas. S. Zane, Judge.

Action by the Hudson Furniture Company against the Freed Furniture &amp Carpet Company for the price of goods sold and delivered. Verdict for the plaintiff set aside and a new trial granted. From the order granting defendant a new trial, plaintiff appeals.

Affirmed.

Mr Frank B. Stephens and Mr. Benner X. Smith, for appellant.

If the provisions of the statute, 2 Comp. Laws 1888, § 2836, is now in force, the delivery of the goods by the railway company free of charge on board the cars, according to the contract, was the receiving of the same by the defendant, and he cannot claim the benefit of the statute of frauds. Ottwater v. Dodge, 6 Wend. 397; People v. Haines, 14 Wend. 546; Dwyer v. Forrest, 2 Abb. 282; Waldron v. Roumain, 22 N.Y. 368; Glenn v. Whittaker, 51 Barb. 451; McGruder v. Gage, 3 Am. R. 177; Krandler v. Elletson, 7 Am. R. 402; Cross v. O'Donnell, 44 N.Y. 661; Rogers v. Phillips, 40 N.Y. 519; Bullock v. Tschergi, 13 F. 35; Allard v. Greasert, 61 N.Y. 1; Merchant v. Chapman, 4 Allen, 362; Hunter v. Wright, 12 Allen, 548; Benjamin on Sales, § 181, and in note 8.

Messrs. Brown & Henderson, for respondent.

BARTCH, J. MINER and SMITH, JJ., concur.

OPINION

BARTCH, J.:

This is an action brought to recover the price of goods sold under verbal contract. The jury rendered a verdict in favor of the plaintiff, and thereupon the defendant moved for a new trial. On the hearing of this motion the verdict was set aside, and a new trial granted. From this order, the plaintiff appealed.

It appears from the evidence that plaintiff's agent called upon the defendant, and received his verbal order for the goods in question at the agreed price of $ 438.90, the goods to be delivered free on board of cars at Hudson, Wis., consigned to the defendant. No particular railroad or carrier was designated. It further appears that the goods were delivered on board of cars, and shipped to Salt Lake City, in pursuance of said order; that a bill was sent to the defendant; and that thereupon, and before the goods arrived at Salt Lake City, the defendant telegraphed and wrote to the plaintiff, refusing to receive or accept the goods. The respondent contends that this contract was void under the statute of frauds, and that to entitle the plaintiff to recover there must be shown a delivery of the goods by the plaintiff, and an acceptance by the defendant. The appellant insists that the delivery of the goods to the carrier was a receiving of the same by the defendant, and therefore does not fall within the statute of frauds, and that this case is controlled by section 2836, Comp. Laws Utah 1888, which reads as follows: "Every contract for the sale of any goods, chattels, or things in action for the price of three hundred dollars, or over, shall be void, unless: 1. A note or memorandum of such contract be made in writing and subscribed by the parties to be charged therewith. 2. Unless the buyer shall accept or receive part of such goods, or other evidences, or some of them, of such things in action; or 3. Unless the buyer shall at the time pay some part of the purchase money."

This law was enacted in 1865, and under its provisions, if the buyer either accepted or received the goods, its terms would appear to be satisfied; and, if this were the only statute affecting this class of contracts, then the only question in this case would be whether the delivery by the seller to a carrier not designated by the buyer would be a sufficient receiving of the goods on the part of the buyer. Counsel for appellant has cited several cases which appear to hold the affirmative of this proposition under statutes similar to the one under consideration. We do not deem it necessary, however, to pass upon this question, in view of a later law found in section 3918, Comp. Laws Utah 1888, which provides as follows: "In the following cases the agreement is invalid, unless the same or some note or memorandum thereof be in writing and subscribed by the party charged, or by his agent. Evidence, therefore, of the agreement cannot be received without the writing or secondary evidence of its contents." Omitting the parts of this section not material in this case, subdivision 4 reads; "An agreement for the sale of goods, chattels, or things in action, at a price not less than two hundred dollars, unless the buyer accept and receive a part of the goods and chattels, or the evidences, or some of them, of such things in action, or pay at the time some part of the purchase money." This law was passed in 1884, and is the latest expression of legislative will on this subject. Under its terms no evidence of an agreement for the sale of goods, the price of which is $ 200 or more, can be received, except the writing or secondary evidence of its contents, unless the buyer has accepted and received a part of the goods; and such a contract not in writing is, in its inception, void, and only becomes operative when the buyer has both accepted and received a portion of the goods. This is so because, after an appropriation of the goods as his own, he will not be heard to assail the validity of the contract under which they became his property.

Under section 2836, supra, this result appeared to follow whenever the buyer accepted or received a part of the goods. The former statute uses the phrase "accept or receive," the latter "accept and receive." In the former, the conjunction is a connective which marks the alternative, and it would appear that either an acceptance of a part of the goods or a receiving of the same would avoid the operation of the statute. In the latter, the conjunction expresses the relation of addition of; and here to avoid the operation of the statute it must be shown, not only that a part of the goods were accepted, but also that they were actually received. It is clear that the two sections are repugnant to each other in this respect, and, as section 3918 is the latest expression of our legislature, it must prevail; and, in so far as the two statutes are repugnant to each other, the former is repealed by the latter by implication. The fact that the former is not expressly repealed by the latter, and is our regular statute of frauds, as insisted by counsel for appellant, makes no difference. Nor does the fact that the latter is merely a statute of evidence, adopted with the Civil Code, and forming a part of it, change the rule of construction that, where there is a positive repugnancy between the provisions of two statutes, the former in point of time is repealed by the latter by implication, to the extent of such repugnancy. In so far as the later law is merely auxiliary or affirmative or cumulative, it does not repeal the former. Both statutes must be construed together, and given effect as far as possible, for both are presumed to have been enacted with deliberation, and with a knowledge of all existing laws on that subject. Suth. St. Const. §§ 152, 160; Wood v. U. S., 16 Pet. 342; People v. Board of Sup'rs, 67 N.Y. 109.

We are of the opinion that, to entitle a person to recover under a contract such as the one under consideration, both an acceptance and a delivery must be shown. Was, then, the delivery to the carrier in this case such a delivery as will satisfy the provision of law expressed in the phrase "accept and receive," or as will avoid the operation of the statute? No part of the purchase money was paid by the buyer, and no note or memorandum of the contract was signed by him. The transaction was made in...