L.J. Mueller Furnace Co. v. J.A. Battin Stove Supply Co.

• Decision Date: 03 May 1926
• Docket Number: 11366.
• Citation: 79 Colo. 418,246 P. 272
• Parties: L. J. MUELLER FURNACE CO. v. J. A. BATTIN STOVE SUPPLY CO.
• Court: Colorado Supreme Court

246 P. 272

79 Colo. 418

L. J. MUELLER FURNACE CO. v. J. A. BATTIN STOVE SUPPLY CO.

No. 11366.

Supreme Court of Colorado, En Banc.

May 3, 1926

Rehearing Denied May 24, 1926.

Error to District Court, City and County of Denver; Julian H Moore, Judge.

Action by the L. J. Mueller Furnace Company against the J. A. Battin Stove Supply Company. Judgment of dismissal, and plaintiff brings error.

Affirmed.

Ellis, Robinson & Sarchet, James E. Garrigues, and W. David McClain, all of Denver, for plaintiff in error.

Hindry Friedman & Brewster, of Denver, for defendant in error.

CAMPBELL J.

This is an action by the Mueller Furnace Company of Milwaukee against the Battin Stove Supply Company of Denver for the price of a carload of furnaces which under an oral contract plaintiff company agreed to sell and the defendant company agreed to buy during the year 1922. Before the plaintiff had concluded its case, and while one of its witnesses was on the stand, the court stopped the examination and peremptorily directed the jury to return, and it returned, a verdict for the defendant, and the action was dismissed. The basis of the court's ruling was that under clause 4 of section 5111, C. L. 1921, our statute of frauds, specially pleaded by the defendant, there could be in no event a recovery by the plaintiff, since the contract of sale of the furnaces was for a price of more than $50, and there was no note or memorandum thereof made in writing and subscribed by the paties to be charged therewith, and the buyer did not accept or receive any part of such goods.

The record indicates that plaintiff's counsel, in their desire to preserve the record preparatory to a review in this court, were persistent in insisting upon their right to be heard with an offer of further proof that they desired to make. The presiding judge, if not irritated, manifested impatience by the course pursued by counsel, but in the end permitted a full statement by counsel of their offer of evidence, and numerous exhibits and the correspondence between the parties, consisting of letters and telegrams were tendered and the entire offer has been reproduced in the record filed in this court and printed in the abstract. So that we have before us for consideration plaintiff's entire case as made by the testimony of its agent, who was on the stand when the directed verdict was ordered, and by plaintiff's various exhibits which constitute the proof that was offered below and rejected by the court. We are able, therefore, to apply the appropriate principles of law to what we are justified in considering plaintiff's showing to be.

Before proceeding to a discussion on the merits, it is proper to observe that it is diffcult for this court to put itself in so advantageous a position as that occupied by the trial court in conducting the trials before it. There may be some ground for the criticism that the trial judge was impatient, but, as will be seen from the above recital, the court's impatience did not result in depriving the plaintiff of making the complete record which it desired. Patience is a cardinal virtue of a judicial officer and particularly of a trial judge, but he has a duty not only to the litigants and their counsel but also to the public, and should not permit the time of the court to be taken up with unnecessary and repeated iterations. We are not to be understood as condemning or approving all that was done by court or counsel during this trial as a model, but we are impressed with the fact that the unsuccessful party has not been shorn of any of its rights.

The discussion has taken a wide range. Many authorities have been cited and a number of questions argued by learned counsel for both parties. In the view we take of the case it is not necessary to consider all of them. At an early stage of the trial plaintiff's counsel announced to the court that they were proceeding on the theory that the contract itself for the sale of the furnaces was oral. That being so, as the contract was for the sale of goods in excess of the value of $50, it is void unless it is excepted from the prohibition of the statute by one or more of the three saving clauses. Plaintiff's counsel invoke the first and second clauses of the statute, the first being that the contract is saved if a note or memorandum thereof be made in writing and be subscribed by the parties to be charged therewith, and the second that if a buyer shall receive and accept part of such goods, or the evidence of some of them, the contract may be enforced. Delivery alone to the carrier on the order of the buyer is not enough. There must be unequivocal proof of a receipt and acceptance by the buyer. Billin v. Henkel, 9 Colo. 394, 397, 13 P. 420. Here the buyer absolutely refused to receive or accept. The court apparently based its directed verdict upon the proporsition that the three exhibits which plaintiff says constitute the notes or memoranda of the contract, designated as A, B and C, are not sufficient to take the contract outside the statute, because no consideration or price appeared therein. We think the court was not entirely accurate in its statement or conclusion as to all of the elements that properly enter into such a determination. According to what some text-writers say is the weight of authority, if the price was not fixed by the parties in their oral contract, the presumption of law is that the sale was for a reasonable price, and the memorandum thereof need not include a presumption of law, and, of course, if no price was fixed, there was nothing to be carried into the memorandum as to what the price was. Nevertheless, because of the concession of plaintiff's counsel and what we consider their own evidence to establish, we connot interfere with this judgment as we proceed to show.

The authorities in this country are not harmonious as to the necessity for a statement in the memorandum of an oral contract of the price or consideration. 27 C.J. p. 267, § 318, pages 280 to 284, §§ 341 to 349, page 384, § 476, page 259, § 308, and the numerous authorities collated in the footnotes. One result of our examination of the record shows that neither party is altogether consistent in its attitude throughout, though it is possible that this is only an apparent inconsistency, due to the inconsistent grounds urged by each of them as separate and distinct grounds for and against the right of the plaintiff to recover. In one place in its brief defendant says that no price was fixed by the parties and there was no price in the written memorandum. In another place it stresses the fact that the price was quoted by the plaintiff, but it was less than the price sued for. A close scrutiny of the defendant's brief we think reveals the fact that what its counsel meant was that no specific price was stated in terms, although, as will be seen...