Kirby v. Johnson

• Decision Date: 31 January 1856
• Citation: 22 Mo. 354
• Parties: KIRBY, Plaintiff in Error, v. JOHNSON, Defendant in Error.
• Court: Missouri Supreme Court

22 Mo. 354

KIRBY, Plaintiff in Error,

v.JOHNSON, Defendant in Error.

Supreme Court of Missouri.

January Term, 1856.

1. A contract was made for the sale of cattle in the field of the seller. The purchaser told the seller to keep the cattle and feed them until he sent for them, at the expense of the purchaser. The seller agreed to do so, but told the purchaser that, if any of them died, he must bear the loss, to which the latter assented. Held, no delivery to take the contract out of the statute of fraud.

Error to Jackson Circuit Court.

The facts appear in the opinion of the court.

Napton, for plaintiff in error, insisted that there was a sufficient delivery to take the contract out of the statute, and cited Elmore v. Stone, 1 Taunt. 457; Chaplin v. Rogers, 1 East. 192; 11 Johns. Rep. 284.

Reid, for defendant in error, cited Shindler v. Houston, 1 Comstock, 661.

RYLAND, Judge, delivered the opinion of the court.

The only question in this case is, whether the contract between the parties is within the statute of frauds and perjuries or not.

The facts of the case are as follows: The plaintiff was buying cattle for California, and being at defendant's house, he went with the defendant to look at some cattle in the defendant's pasture. They were unable to agree as to the price of the lot, but traded for four yoke of oxen, at the price of forty dollars per yoke. Plaintiff told defendant that he had not the money with him; but if the defendant would go home with him, or would go back to town with him, he would pay him. Defendant replied that it did not matter about the money: he could pay it when he came for the cattle, which would suit as well. Plaintiff then told defendant that he was not prepared to drive the cattle away, and requested defendant to keep them for him until he sent for them, and to feed them, as he wished them well fed, for which he would pay him well. The defendant agreed to do so. The oxen were not removed from the pasture: the contract was not reduced to writing; nor was any money paid. After plaintiff had started to leave, defendant called to him and said, “remember, if any of the cattle die, they die yours, and you must bear the loss.” To which plaintiff replied, “certainly.” The defendant sold the cattle the next day, for fifty dollars per yoke, to another purchaser.

The suit is to recover the forty dollars, the difference in the price. It was originally brought before a justice of the peace, in whose court the plaintiff obtained judgment. The defendant appealed to the Circuit Court, where, on trial, the defendant had judgment; the court holding, that the contract was within the statute of frauds, and that the plaintiff was not entitled to recover.

The plaintiff brings the case here by writ of error, and contends that the contract was not within the statute of frauds, as the facts show there was a sufficient delivery to take it out of the statute, and he relies upon the cases of Elmore v. Stone, 1 Taunt. Rep. 457; Chaplin v. Rogers, 1 East. 192, and Vincent v. Germonds, 11 Johns. Rep. 284.

The defendant in error, on the other hand, contends that the facts show the contract to be clearly within the statute of frauds; that delivery and acceptance must be evidenced by some act of the parties, and that no mere words, however significant, are sufficient; and he relies upon the case of Shindler v. Houston, (1 Comst. Rep. 261.)

Our statute of frauds and perjuries, § 6, declares that “no contract for the sale of goods, wares and merchandise, for the price of thirty dollars or upwards, shall be allowed to be good, except 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 is, substantially, the 17th section of the English statute of frauds and perjuries, (29 Charles II.) The English statute fixes the price of the goods at ten pounds or upwards; our statute at thirty dollars or upwards; in other respects the two sections are almost literally the same. Although the statute of frauds and the statute of limitations were both so much objected to at the time when they were passed that the English judges appeared anxious to get them off the statute book, yet, in later times, the judges have become desirous of giving to these statutes their full effect. (Proctor v. Jones, 2 Car. & Payn. Rep. 532--remarks of Best, chief justice.) “It has been said that the English statute of frauds and perjuries (29 Car. II, c. 3) carries its influence through the whole body of our civil jurisprudence, and is, in many respects, the most comprehensive, salutary, and important legislative regulation on record, affecting the security of private rights. (2 Kent's Comm., p. 647, note d.) I concur in ascribing to this statute all that has been said in its praise by the American commentator. To make the contract of sale valid, under this statute, there must be a delivery or tender of it, or payment or tender of it, or earnest given, or a memorandum in writing, signed by the party to be charged; and if nothing of the kind takes place, it is no contract.” (2 Kent's Comm. 647, 494.)

It may not be amiss to examine some of the cases on the subject, as decided by the English, and also by the American courts.

In Baldry and others v. Parker, 2 Barn. & Cres. 37, (9 Eng. C. L. R. 16,) Abbott, chief justice, said: “We have given our opinion upon more than one occasion, that the 29 Carr. II, c. 3, is a highly beneficial and remedial statute. We are, therefore, bound so to construe it as to further the object and intention of the legislature, which was the prevention of fraud.” It appeared from the facts in this case, that the defendant went into the plaintiff's shop and bargained for various articles. Some were severed from a larger bulk, and some he marked in order to satisfy himself that the same were afterwards sent home to him. A separate price for each article was agreed upon. The defendant desired that an account for the whole might be sent to his house, and then he left the plaintiff's shop; a bill of parcels was accordingly sent, together with the goods, when the defendant refused to accept them; the court held that there was no delivery and acceptance of the goods, so as to take the case out of the operation of the statute of frauds. Bayley, Judge, said: “The buyer can not be considered to have actually received the goods, when they have remained from first to last in possession of the seller.” Holroyd, Judge, said, “As long as the seller preserves his control over the goods, so as to retain his lien, he prevents the vendee from accepting and receiving them as his own, within the meaning of the statute.” Best, Judge, said, “It was formerly considered that a delivery of the goods by the seller, was sufficient to take a case out of the statute, (that is, the 17th section); but it is now clearly settled that there must be an acceptance by the buyer, as well as a delivery by the seller. The statute enacts that, where the bargain is for something to the value of ten pounds, it shall not bind, unless something unequivocal has been done to show that the contract is complete.” Abbott, chief justice, said, “If we held that such a transfer and acceptance were complete in this case, it would seem to follow, as a necessary consequence, that the vendee might maintain trover without paying for the goods, and leave the vendor to his action for the price. Such a doctrine would be highly injurious to trade, and it is satisfactory...