Middleton v. Evans
| Decision Date | 28 May 1935 |
| Docket Number | 5547 |
| Citation | 86 Utah 396,45 P.2d 570 |
| Court | Utah Supreme Court |
| Parties | MIDDLETON v. EVANS et al |
Appeal from District Court, Third District, Salt Lake County; Hon James H. Wolfe, Judge.
Action by George Middleton against John Henry Evans, in which plaintiff obtained a judgment against defendant and caused a writ of garnishment thereon to be issued and served on the Deseret Book Company, and the MacMillan Company was interpleaded as a defendant. From a judgment for the interpleaded defendant, plaintiff appeals.
CASE REMANDED FOR A NEW TRIAL.
Bowen & Quinney, of Salt Lake City, for appellant.
Nephi Jenson, of Salt Lake City, for respondent.
WOLFE, J., being disqualified, did not participate.
In this action, on September 1, 1928, the plaintiff Middleton obtained a judgment against the defendant Evans for $ 918.59.
Evans is the author of a book entitled "Joseph Smith, An American Prophet," which was published by the interpleaded defendant, MacMillan Company, pursuant to a written agreement dated November 25, 1932, between the author and publisher, which provided as follows:
While the book was being published, Evans called on the garnishee, the Deseret Book Company, which is known as a Mormon Church book store, at Salt Lake City, and stated that his book was being published, that he was required to dispose of 1,000 copies thereof, and received a promise that it would give him an order when the book was published. Thereafter the representative of MacMillan Company called on the Deseret Book Company and asked for an order for said book, and was told that the book company had promised its order to Evans; whereupon the representative of MacMillan Company said that it was all right for it to order said book from Evans to the extent of 1,000 copies, and also stated the price to be $ 4, less 40 per cent.
About March 20, 1933, after the book had been published, Evans again solicited the Deseret Book Company to purchase certain copies of said book, and received from it an oral order for 300 copies, 250 copies to be sent by freight and 50 copies by express. Nothing was said at any time between the Deseret Book Company and Evans regarding the price which the book company was to pay for the books or by whom the book were to be delivered, or to whom payment was to be made. The Deseret Book Company, however, knew the price it would have to pay for the books, having been told by MacMillan Company's agent. Evans was not the agent at any time of MacMillan Company to sell said book or solicit orders therefor, nor was he ever authorized to represent MacMillan Company in the the sale of said book or in the making or soliciting of orders therefor. His only dealings with said company in that regard were covered by their written contract.
Evans immediately communicated this oral order which he received from the Deseret Book Company to MacMillan Company, which company, on March 27, 1933, shipped the said books as ordered directly to the Deseret Book Company, according to Evans' directions. On April 5, 1933, the Deseret Book Company handed to Evans a written confirmation of its oral order for said books, as is its custom to do where oral orders are given, which Evans sent on to MacMillan Company. On April 12, 1933, the Deseret Book Company received these books from MacMillan Company, and these 300 copies constituted a part of the 1,000 copies which Evans agreed to purchase under his contract with MacMillan Company.
On April 14, 1933, Middleton caused a writ of garnishment on his judgment against Evans in this case to issue and to be served on the Deseret Book Company, garnishee, which, on April 21, 1933, in answer to the question in regard to its indebtedness to the defendant, said:
No invoice accompanied the shipment of books to the Deseret Book Company, and MacMillan Company made none to the Deseret Book Company until May 5, 1933, when it made and sent to the Deseret Book Company its invoice, billing it for the 300 copies of said book, at $ 4, less 40 per cent per copy, allowing two months from date of shipment for payment, which was not the usual practice. The invoice was received by the Deseret Book Company on May 12, 1933.
Thereafter MacMillan Company was interpleaded, and filed an answer, in which it alleges that the said books were shipped to the garnishee and sold on its credit and billed to it and charged to it on the books of the interpleaded defendant, and that the garnishee has accepted the same on said billing and agreed to pay the interpleaded defendant therefor. And the Deseret Book Company filed an amended answer to the same effect--all of which was denied by the plaintiff.
It appears that the attorney for MacMillan Company had been acting as the attorney for the defendant for a number of years, and that the amended answer of the Deseret Book Company was prepared by said attorney, and that the defendant and the garnishee worked in harmony with the interpleaded defendant throughout this case.
The court found in favor of the interpleaded defendant and awarded the money to it, from which judgment the plaintiff appeals, and assigns as error that the judgment is not supported by the facts found, that certain of the findings of fact are not supported by the evidence, and that the court failed to make findings of fact on certain material issues in the case. Except as to certain particulars hereinafter discussed, and that this statement is more in detail, the court found the facts substantially as herein stated.
Plaintiff contends that Evans in his contract with MacMillan Company agreed to purchase 1,000 copies of his book from it, and that pursuant to said contract he solicited and sold to the Deseret Book Company 300 copies thereof, and ordered the MacMillan Company to deliver the same direct to the Deseret Book Company. In other words, Evans purchased, according to his contract, 300 copies from MacMillan Company and resold them to the Deseret Book Company, and, having bought the books from Evans, the Deseret Book Company is indebted to him for the purchase price thereof. On the other hand, MacMillan Company contends that it sold the books directly to the Deseret Book Company, and that therefore the Deseret Book Company is indebted to it for the purchase price thereof.
We will first determine the intent of the parties as expressed by the provisions of the contract, dated November 25, 1932, between Evans and MacMillan Company as hereinabove set out. Counsel for MacMillan Company contends that the real meaning of the contract is "simply this, -- that Evans was obligated to 'dispose of' or induce some 'Mormon Book Store' to take 1,000 copies without any profit or royalty to Evans." It is a well-established rule of law that where the language of a contract is clear and unambiguous, it is the duty of the court to determine the intent of the parties from the language used by the parties in the contract. Wintle v. Utah-Idaho Sugar Company, 73 Utah 215, 273 P. 312; Armstrong v. Larsen, 55 Utah 347, 186 P. 97; Manti City Sav. Bank v. Peterson, 33 Utah 209, 93 P. 566, 126 Am. St. Rep. 817. The language of this contract is absolutely clear and unambiguous and is capable of only one interpretation, which is, that Evans agreed to purchase from MacMillan Company, on publication, 1,000 copies of his book, at the retail price less 40 per cent, and to pay for the same within two months and not to resell them to the book trade excepting to Mormon Church book stores.
Under section 81-1-1 (), a contract to sell goods is defined as "a contract whereby the seller agrees to transfer the property in goods to the buyer for a consideration called the price," and a sale of goods as, "an agreement whereby the seller transfers the property in goods to the buyer for a consideration called the price." The only difference between the two is that in a contract to sell, the parties agree to transfer the property in the goods at some future time, whereas in the sale the parties agree to transfer the property presently. Section 81-1-5 provides that such goods may be "goods to be manufactured or acquired by the seller after the making of the contract to sell, in this title called 'future goods.'" This contract between MacMillan Company and Evans is clearly a contract to sell "future goods" by MacMillan Company to Evans, as the books were not yet manufactured at the time of the making of the contract.
Thereafter pursuant to this contract, MacMillan Company published the book, and it thereupon became Evans' duty under his contract, to purchase 1,000 copies thereof. What was necessary for Evans to do in order to transfer the property in those books to him? Under section 81-2-1, "no property in the goods is transferred to the buyer unless and until the goods are ascertained." And section 81-2-2 provides that under a contract to sell, the property in the goods "is transferred to the buyer at such time as the parties to the contract intend it to be transferred," and "for the purpose of ascertaining the...
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