Kling v. Fries

• Decision Date: 18 January 1876
• Citation: 33 Mich. 275
• Court: Michigan Supreme Court
• Parties: George Kling v. Valentine Fries and another

33 Mich. 275

George Kling v. Valentine Fries and another

Supreme Court of Michigan

January 18, 1876

Heard January 7, 1876; January 11, 1876

Error to Ionia Circuit.

Judgment affirmed, with costs.

Clute & Smith, for plaintiff in error, cited: 2 Pars. on Con 587; Story on C. of L., §§ 38, 257 a 259, 317, 272 a 278 a; Thompson v. Ketchum, 8 Johns. 190; Comp. L 1871, §§ 2148, 4699; Paton v. Coit, 5 Mich. 510; Hyde v. Goodnow, 3 Cow. 266; Bancher v. Mansel, 47 Me. 62; Raw v. People, A. L. J., Dec. 11 1875, p. 377; Hunt v. Knickerbocker, 5 Johns 326; Davis v. Bronson, 6 Iowa 425; Wilson v. Stratton, 47 Me. 120; Territt v. Bartlett, 21 Vt. 184; Spaulding v. Preston, 21 Vt. 9; Tracy v. Talmadge, 14 N. Y., 162; Griffith v. Wells, 3 Denio 226; Bank v. Niles, 1 Doug. 400; Myers v. Carr, 12 Mich. 72.

Mitchel & Pratt, for defendants in error, cited: Dolan v. Green, 110 Mass. 322; Abberger v. Marvin, 102 Mass. 70; Ely v. Webster, Ibid., 304; Adams v. Coulliard, Ibid., 167; Finch v. Mansfield, 97 Mass. 87; 1 Pars. on Con., 533 a; Story on Sales, § 306 (4); 2 Kent's Com., 499; Ellis v. Maxson, 19 Mich. 186; Kermott v. Ayer, 11 Mich. 181; Whitford v. Panama R. R., 23 N. Y., 465; People v. Lambert, 5 Mich. 349; Holdridge v. F. & M. Bunk, 16 Mich. 66; Kentucky v. Bassford, 6 Hill 526; Andrews v. Herriot, 4 Cow. 508, note; Holman v. Johnson, Cowp, 341; Kreiss v. Seligman, 8 Barb. 439; McIntyre v. Parks, 3 Met. 207; Haven v. Foster, 9 Pick. 111; Bank v. Dodge, 8 Barb. 233; Bank v. Curren, 36 Iowa 555; Whitlock v. Workman, 15 Iowa 351; School Dist. v. Snell, 24 Mich. 350; Saxton v. Macomber, 28 Mich. 316; Scudder v. Worster, 11 Cush. 573.

OPINION

Marston, J:

Fries and Vilas brought an action of assumpsit against Kling to recover the amount due upon two promissory notes made by the latter and payable to the order of V. Fries & Co.

The defendant pleaded the general issue, with notice that the notes sued upon were given for intoxicating liquor purchased from plaintiffs, and that they were by reason thereof null and void.

The cause was tried by the court, who found the facts to be, that in 1872 and 1873 the plaintiffs were wholesale dealers in liquors at Cleveland, in the state of Ohio; that the defendant was engaged in the same business at Ionia in this state; that in October, 1872, the plaintiffs' agent, at defendant's place of business, took defendant's verbal order for a quantity of liquors, and transmitted said order to the plaintiffs in Ohio for their approval; that the plaintiffs approved of defendant's order and consigned the goods to a common carrier in the city of Cleveland; that defendant took the goods from the carrier in Michigan, and paid the freight. Other facts were found as to the making and delivery of the notes, and the amount due thereon, but it is unnecessary to set forth the same in detail.

From the facts found, the court held the contract and sale was not made in Michigan, nor in violation of the laws of this state; that the plaintiffs were therefore entitled to recover; and judgment was rendered accordingly.

Counsel for plaintiff in error discussed several questions which we think are not raised by this record. It is not denied but that there was evidence given on the trial tending to prove the facts found by the court, and the only question for us to determine is, whether the facts as found support the judgment.

It is insisted that because plaintiffs' agent, as found by the court, solicited and obtained the order in this state, and the defendant afterwards received the liquors from the carrier in this state, and paid the freight thereon, the contract was therefore a Michigan contract, notwithstanding the fact that the order was by the agent sent to Ohio for approval, approved there, and the goods then shipped to defendant.

It is certainly quite clear that no agreement was entered into between the parties at the time the order was given. The court does not find that an agreement was then made, or that the agent did any thing beyond soliciting the order and sending it forward for approval by his principals. Had the order been for some other kind of goods, taken and sent forward for approval as this was, no one will contend that Kling could have sustained an action against Fries & Co. for a failure on their part to approve the order and ship the goods, and this irrespective of any question that might be raised under the statute of frauds. Until the order was approved or accepted by the plaintiffs, there was no agreement made. The order was not binding until accepted; but when accepted the contract then became complete and binding. The order might have been in writing and sent to Fries & Co. by mail; or Kling might have sent a verbal order by some person going to Cleveland; or he might have gone there and given the order himself; in either event, the acceptance of the order would have been necessary to have made a valid contract, which must be founded on mutual assent. The minds of the parties for the first time met on the approval of the order in Ohio. The contract was then entered into, made complete and binding, and must therefore be considered as having been made at that place. See this question discussed, and the authorities collected in 1 Parsons on Contracts, pp. 480, 485.

The offer and acceptance being verbal, and the goods purchased exceeding in value the sum of fifty dollars, was the contract within the statute of frauds, so that an acceptance of the liquors by Kling was necessary to its validity? Illegality will not be presumed....