Metz v. Willitts

• Decision Date: 23 April 1906
• Citation: 85 P. 380,14 Wyo. 511
• Parties: METZ v. WILLITTS
• Court: Wyoming Supreme Court

85 P. 380

14 Wyo. 511

METZ v. WILLITTS

Supreme Court of Wyoming

April 23, 1906

ERROR to the District Court, Sheridan County, HON. C. H. PARMELEE Judge.

The action was brought by W. S. Metz against J. O. Willitts to recover a stated sum alleged to be due upon a sale of certain hay and the pasture feed upon certain land. Judgment was for defendant. Plaintiff brought error. The material facts are stated in the opinion.

Judgment reversed.

Metz &amp Sackett, for plaintiff in error, argued and contended that upon the evidence there should have been a judgment for the plaintiff, and cited the following authorities upon the proposition that an offer by the defendant and its acceptance by the plaintiff constituted a valid and completed contract for the sale of certain hay and pasture feed, and that the fencing apart of the hay was an acceptance of the property. (2 Mech. on Sales, Sec. 1117, 1182, 1186-7; Mitchell v. LaClair, 43 N.E. 117; Scott v. English, 2 Dowl. & L., 520; Smith v. Bergengren, 153 Mass. 236.)

E. E. Enterline, for defendant in error, argued and contended that no contract had been completed between the parties by offer and acceptance, upon the evidence; and that if a verbal contract had been made, defendant could avail himself of the statute of frauds, and did so on the trial, citing Rev. Stat., Sec. 2954; Shoe Co. v. Brooks, 9 Wyo. 424.

Metz & Sackett, and Gibson Clark, for plaintiff in error, in reply.

In the case of a contract of sale, in the absence of express stipulation concerning delivery or payment, the law will supply the omission and require both to be performed in a reasonable time and the usual manner. (Mfg. Co. v. Goddard, 14 How., 446.) Several writings, though made at different times, may be construed together to ascertain the terms of a contract within the statute of frauds, and if such be signed by the party to be charged, it is not necessary that the later writing should refer to the other, if on inspection, it appears that each relates to the same transaction. (Thayer v. Luce, 22 Ohio St. 62.) The acceptance of a written offer may be shown by parol. (Fur. Co. v. R. R. Co., 22 Ohio St. 451; 29 Ency. L. (2nd Ed.), 860.) Where a case is submitted practically upon defendant's demurrer to plaintiff's evidence, as this case was, the court will draw all inferences from the testimony not against reason and probability. (Bank v. Smith, 11 Wheat., 171.)

While it is necessary under the statute of frauds in case there is no sufficient note or memorandum of the contract of sale, that there should be evidence showing the receipt and acceptance by the buyer in order to charge him, that is not necessary where there is such note or memorandum. (Counsel continued to insist that the facts showed a complete delivery, and cited Baker on Sales, 312; 24 Ency. L. (2nd Ed.), 1068; Morse v. Sherman, 106 Mass. 430; 2 Kent (12th Ed.), 492; Hayden v. Demets, 53 N.Y. 427; Russell v. Covington, 42 N.Y. 120; Lassing v. James, 40 P. 534.)

SCOTT, JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

SCOTT, JUSTICE.

Plaintiff and defendant in error were respectively plaintiff and defendant below and for convenience will be designated as such in this opinion.

The plaintiff brought this action to recover the sum of $ 488.00 alleged to be due upon a sale of seventy-two tons of hay and the pasture feed upon from six to seven hundred acres of land, and for which he claims defendant promised to pay for the hay at the rate of four dollars per ton and two hundred dollars for the pasture, with interest from October 10, 1904, the date of such alleged sale. The case was tried to the court without a jury, and judgment of dismissal was rendered in favor of defendant and for costs. The plaintiff brings the case here on error.

1. The plaintiff was sworn and testified as a witness in his own behalf, and rested his case upon his own testimony and certain letters which he identified as having been written by defendant and which were admitted in evidence. Thereupon the defendant moved "to strike out all the testimony of the plaintiff for the reason that the same is irrelevant; that the cause of action, if any, plaintiff has against defendant would be one of non-acceptance and not of sale and delivery, and the evidence is wholly insufficient to sustain the allegations of the plaintiff." The motion was sustained, to which ruling plaintiff excepted and such ruling is here assigned as error. The judgment recites that "the defendant by his counsel moved to strike out the testimony of the plaintiff and dismiss the action, and the court being now fully advised in the premises doth sustain the motion and doth find generally for the defendant," and judgment was rendered dismissing the case and for costs in favor of the defendant.

A motion to strike for irrelevancy which goes to all of the testimony of a witness or all of the testimony in a case is improperly sustained if any of the testimony is relevant to the issue; and conversely it should only be sustained when all of the evidence is irrelevant to the issue. (Wandling v. State, 25 W.Va. 692.) The authorities are numerous and all agree that when the motion is directed to relevant as well as incompetent and irrelevant testimony the motion should be denied. It is the duty of the moving party to point out with particularity the irrelevant evidence to which his motion is directed and not to include relevant testimony. (22 Ency. Pl. & Pr., 1318, and cases there cited.) A case recently decided by the Supreme Court of Montana is to the same effect. (Dorais v. Doll et al, 33 Mont. 314, 83 P. 884.) Such a motion goes to the admissibility of the evidence and not to its weight or sufficiency. The rule is clearly stated in Wilcox v. Stephens, 30 Fla. 377 11 So. 659, where the following language is used: "Motions to strike out...