Meincke v. Falk

• Decision Date: 10 October 1882
• Citation: 55 Wis. 427,13 N.W. 545
• Parties: MEINCKE v. FALK, ADM'R, ETC.
• Court: Wisconsin Supreme Court

55 Wis. 427

13 N.W. 545

MEINCKE

v.FALK, ADM'R, ETC.

Supreme Court of Wisconsin.

Filed October 10, 1882.

Appeal from circuit court, Milwaukee county.

This is an action to recover the cost of a certain carriage manufactured by the plaintiff, and alleged to have been ordered and contracted for by Franz Falk through his agent, Louis Falk, in November, 1878, as a family carriage for the use of himself and family, at a price not exceeding $900, to be ready for delivery on or about May 1, 1879, and which was, as alleged, built and completed according to agreement, and has ever since been kept subject to defendant's order. The defendant refused to accept the same, and the plaintiff claimed, as damages, the value of the carriage, $850, storage, ($1.50 per month,) interest, and costs. The answer was a general denial. The cause was tried by a jury, who, under the directions of the court, returned a special verdict to the following effect: Louis Falk was authorized by Franz Falk to order, and he did order, the carriage in question to be manufactured by the plaintiff at a cost not exceeding $900, to be paid for when ready for delivery on or about May 1, 1879, and the same was manufactured by the plaintiff pursuant to a special order given by Louis Falk, and according to the description given and a model selected by him, and was completed in the plaintiff's shop ready for delivery in May, 1879, of which fact Franz Falk was notified June 7, 1879; that in giving such order Louis Falk intended to procure a carriage of the plaintiff's manufacture, and his skill, labor, and workmanship on it were the special inducement for giving the order, and without such order such carriage would not have been manufactured by the plaintiff and kept by him for sale as part of his general stock; that the value of the carriage was $850, and the value of the storage was $1.50 per month, or $50.70, and that the plaintiff was entitled, as damages, to such values and $167.59 interest, amounting in all to $1,068.29. The defendant's counsel moved, upon the minutes of the judge, to set aside the verdict, and for a new trial, on the grounds of various errors and exceptions taken on the trial, and because the same was contrary to law and evidence. The motion being overruled, judgment was entered upon the verdict for damages and costs, from which judgment this appeal is brought.John A. Wall, for respondent.

Cotzhausen, Sylvester & Scheiber, for appellant.

CASSODAY. J.

There is no claim that the alleged contract or order for the carriage was in writing. On the contrary, it is conceded that it vested wholly in parol. For this reason it is urged that it came within the statute of frauds, and hence was not binding upon Franz Falk, even if Louis had authority to make and did make the contract. The question is not without difficulty, and the decisions of the courts are by no means uniform. The statute provides that “every contract for the sale of any goods, chattels, or things in action, for the price of $50 or more, shall be void, unless (1) a note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged therewith; or (2) unless the buyer shall accept and receive part of such goods, or the 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.” Section 2308, Rev. St. The substance of this statute was adopted in England more than 200 years ago, and hence it may be profitable to ascertain the construction which has been given to it by the courts of that country.

In Towers v. Osborne, 1 Strange, 506, decided in 1722, “the defendant bespoke a chariot, and when it was made refused to take it, and in an action for the value it was objected that they should prove something given in earnest, or a note in writing, since there was no delivery of any part of the goods. But the chief justice (Pratt) ruled this not to be a case within the statute of frauds, which relates only to contracts for the actual sale of goods, where the buyer is immediately answerable, without time given him by special agreement, and the seller is to deliver the goods immediately.” Forty-five years afterwards that decision was expressly sanctioned by Lord Mansfield and the whole court in Clayton v. Andrews, 4 Burrows, 2101, and one of the justices took occasion to say that the case “had always been considered as an authority in point upon questions of this kind.” Twenty-five years later, in Rondeau v. Wyatt, 2 H. Bl. 63, which was a contract to deliver at a future time 3,000 sacks of flour at a certain price per sack, Lord Loughborough disapproved of the language used in the two former opinions, in so far as they indicated that the statute in no case extended to executing contracts of sale; but the opinion of the court expressly states that “the case of Towers v. Sir John Osborne was plainly out of the statute, not because it was an executory contract, as it has been said, but because it was for work and labor done, and materials and other necessary things to be found, which is different from a mere contract of sale, to which species of contract alone the statute is applicable. Page 67.

In Cooper v. Elston, 7 Durnf. & E. 16, Lord Kenyon, C. J., follows Rondeau v. Wyatt, and says that “ Towers v. Osborne was a mere contract for work and labor; the thing contracted for did not exist at the time.” Ashhurst, J., was of the same opinion, and Grose, J., said: “The case of Towers v. Osborne went upon the general principle that executory contracts were not within the meaning of the statute. If by that were meant contracts for the sale of goods to be executed on a future day, such a construction would be a repeal of the act; but if it only meant such contracts as were incapable of being executed at the time, then the decision was right; and such was the case” then in judgment. Lawrence, J., said: “The case of Towers v. Osborne, when truly considered, was not a contract for the purchase of goods, but for the making of something which had no existence at the time.” One of the justices in Groves v. Buck, 3 Maule & S. 178, decided in 1814, said that “the court, in Rondeau v. Wyatt, distinguished it from the two former cases by saying that in those cases some work was to be done.” The last case cited was for the non-acceptance of a quantity of oak pins agreed to be furnished for a sum exceeding the amount named in the statute, but which was not then made, but was to be cut out of slabs. It was tried at the common pleas beforeGibbs, C. J., who, in answer to the objection that the case came within the statute of frauds, cited and followed Towers v. Osborne, supra, and hence a verdict was found for the plaintiff.

On appeal to the king's bench the verdict was sustained, and Lord Ellenborough, giving the opinion of the court, said: “The subject-matter of this contract did not exist in rerum natura; it was incapable of delivery and of part acceptance, and where that is the case the contract has been considered as not within the statute.” He then goes on to distinguish the case from Rondeau v. Wyatt, supra. Garbutt v. Watson, 5 Barn. & Ald. 613, was decided six years later, and was for the non-acceptance of 100 sacks of flour, to be got ready by the plaintiffs, who were millers, by a certain time, and the court disapproved of Clayton v. Andrews, supra, and followed Rondeau v. Wyatt, supra; and Abbott, C. J., (Lord Tenterden,) said: “In Towers v. Osborne the chariot which was ordered to be made would never, but for the order, have had any existence. But here the plaintiffs were proceeding to grind the flour for the purposes of general sale, and sold this quantity to the defendant as part of their general stock. The distinction is indeed somewhat nice, but the case of Towers v. Osborne is an extreme case, and ought not to be carried further.”

The case of Atkinson v. Bell, 8 Barn. & C. 277, was decided in 1828. The defendant ordered certain frames of the patentees, and ordered alterations upon them, and then refused to accept them. The action was for goods sold and delivered, goods bargained and sold, work and labor, and materials found and provided, but there was no count for the non-acceptance of the goods. The plaintiffs failed to recover by reason of the defective pleading, but the court said: “If the declaration had contained a count for not accepting the machines, the plaintiffs might have been entitled to recover; and I think now that upon payment of costs they should be allowed to set aside the nonsuit, and add other counts to the declaration, and have a new trial.” Page 281. In that case the court expressly declared that if the employe refuses in such case to accept, a special action on the case for such refusal may be maintained by the party employed. Page 283. So the case of Towers v. Osborne was distinguished, but not questioned, in the still later case of Smith v. Surman, 9 Barn. & C. 574. A year later the statute known as Lord Tenterden's act, was passed, and the statute of frauds in question was thereby extended “to all contracts for the sale of goods, * * * notwithstanding the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery,” Thus it appears that although the language was criticised, yet the decision in Towers v. Osborne was never overruled by the English courts, but was overruled by the English parliament, for the obvious reason that their courts had refused to overrule it. The statute being thus changed in England, there can be no application here of the subsequent cases there, like Lee v. Griffin, 1 Best & S. 272, where a person ordered a set of artificial teeth to be made to fit the mouth of the testator, and then a recovery for...