Reeves & Company v. Bruening

• Decision Date: 31 May 1904
• Citation: 100 N.W. 241,13 N.D. 157
• Court: North Dakota Supreme Court

100 N.W. 241

13 N.D. 157

REEVES & COMPANY v. JOHN BRUENING

Supreme Court of North Dakota

May 31, 1904

Appeal from District Court, Foster county; Glaspell, J.

Action by Reeves & Co. against John Bruening. Judgment for plaintiff and defendant appeals.

Reversed.

Judgment reversed, a new trial granted, and cause remanded.

White & Craven and Morrill & Engerud, for appellant.

Plaintiff cannot recover without proof that sale was executed and title passed. Section 4987, Rev. Codes 1899; Benjamin on Sales section 1117; Mechem on Sales, section 1665.

If the sale is not consummated, and no title passes, plaintiff must seek his redress under sections 4988 and 5009, Rev. Codes 1899. Tufts v. Grewer, 22 A. 382; Greenleaf v Gallagher, 45 A. 829; Mechem on Sales, section 1689.

The evidence only shows a proposal revoked before acceptance. Order was left with Chaffee Bros. & Co. for transmission Aug. 17, 1903. It could not reach Reeves & Co. before Aug. 18, 1903. The letter of acceptance was not mailed until Aug. 18th or 19th. The letter revoking the order was mailed Aug. 17th. If leaving the order with Chaffee Bros. & Co. was a delivery, such order on its face was a mere proposal to buy, and could not become a contract until accepted. Section 3836, Rev. Codes 1899, Subdiv. 2; section 3841 Rev. Codes 1899; Mechem on Sales, section 217 et seq.; Benjamin on Sales, section 38; McCormick Harv. Mach. Co. v. Richardson, 56 N.W. 682; Durkee v. Schultz, 98 N.W. 149.

The proposal itself prescribed that acceptance should be by the home office and communicated by it. No other acceptance was binding. Rev. Codes, section 3858; Mechem on Sales, section 239; Benjamin on Sales, 54; Eliason v. Henshaw, 4 Wheat, 224, 17 U.S. 224, 4 S.Ct. 556; Carr v. Duval, 14 Peters, 77, 10 S.Ct. 361; Durkee v. Schultz, 98 N.W. 149.

If the evidence showed an executory contract of sale it did not show an executed one. The essential condition to an executed contract of sale is a transfer of title to the thing sold. Woodbury v. Long, 8 Pick. 543; Council Bluffs Iron Works v. Cuppey, 41 Iowa 104.

Readiness and willingness to deliver does not make a delivery, much less a transfer. Woodbury v. Long, 8 Pick. 543; Council Bluffs Iron Works v. Cuppey, 41 Iowa 104; Tufts v. Grewer, 22 A. 382; Greenleaf v. Gallagher, 45 A. 829.

Delivery and transfer are largely matters of intention of parties. Especially is this true where there is no change of possession. Change of title is a fact to be inferred from facts and circumstances. Mechem on Sales, sections 3, 4, 477 et seq. and 546, 547 and notes; Foster v. Ropes, 111 Mass. 10; Benjamin on Sales, section 309 and notes.

H. R. Turner, for respondent.

The written appointment of Weego, the general agent, only provided for his salary and the length of his service and did not specify his duties. It was competent for him to testify as to these. Mechem on Agency, section 102; Perry v. Hedrick, 98 Am. Dec. 774; Gould v. Norfolk Land Co., 57 Am. Dec. 50.

Parol evidence of a prior agreement may be received by the court to place itself in the situation of the parties to a written instrument and to identify the subject matter. 2 Jones on Evidence, section 455. The testimony of a subagent is also competent. Dunham v. Gill, 48 Ill. 151.

Revocation of an order is of no effect until brought to the mind of the person to whom the offer was made, and a revocation by mail does not operate from the time of posting. Beach on Contracts, section 39.

The delivery of goods without insisting on a condition, thereby making it an unconditional delivery, waives any contract antecedently made. Chapman v. Lathrop, 16 Am. Dec. 433.

When the condition is waived by the vendor of personal property, the property will vest in the vendee. 6 Am. & Eng. Enc. Law (2d Ed.) 474; Smith v. Dennis, 17 Am. Dec. 368; C. Aultman & Company v. Silha et al., 55 N.W. 711.

OPINION

MORGAN, J.

This action is brought to recover the purchase price of a steam threshing outfit, consisting of an engine and separator and all other necessary parts to make the outfit complete. The complaint contains the following allegations, after a particular description of the property, viz.: "That afterwards, on the 17th day of August, 1903, the defendant purchased of the plaintiff, by his unconditional order in writing, the above-described personal property for the sum of $ 3,100; that by virtue of the terms of said written order and sale the defendant agreed to pay to the plaintiff the aforesaid $ 3,100 by delivering a proper and sufficient mortgage * * * and execute five promissory notes. [Here follows description of notes.] That by virtue of the further terms and conditions of said written order defendant agreed to pay the freight on said property from Columbus, Indiana, to Carrington, North Dakota, which freight was and is the sum of $ 262. That on or about the 17th day of August, 1903, said property and machinery was complete and ready for delivery at Carrington, North Dakota, and on said day the plaintiff, through its agents, Chaffee Bros. & Co. of Carrington, North Dakota, sold and delivered to the defendant all of the above foregoing described property. That the plaintiff has demanded the foregoing notes and mortgage for the purchase price of said property and machinery, together with the $ 262 freight thereon, all of which the defendant refuses to execute and deliver, and refuses and neglects to pay the freight on said property, or any part thereof, as above stated. That by virtue of the terms and conditions of said written order and sale of said property, and on account of the failure of said defendant to execute and deliver said notes and to pay the freight hereinbefore set forth, the plaintiff had the right to declare the entire purchase price of said property due and payable, and the plaintiff has so elected and declared the said purchase price of said machinery now due." The answer alleges, in effect, that there was no perfected sale of the property in question; that defendant proposed in writing to buy the threshing outfit, but before the same was accepted by the plaintiff defendant withdrew his proposition of purchase. And defendant further denies generally all the allegations of the complaint. The trial court directed a verdict for the plaintiff for the price of the property specified in the contract and for the freight agreed to be paid, being in all for the sum of $ 3,416.75. The defendant appeals from the judgment and specifies errors of law in the admission of testimony and error in directing a verdict.

The errors relied on may be considered under three divisions: (1) Admissibility of certain evidence of conversations between the parties before the written contract was entered into; (2) admissibility of certain evidence as to the authority of the general agent of the plaintiff, who was acting under a written contract; (3) insufficiency of the evidence to justify a direction to the jury that, as a matter of law, the sale was an executed sale, or in directing the jury as a matter of law that there was a delivery of property to the defendant.

The evidence is practically uncontradicted, and is substantially as follows: On August 17, 1903, the defendant, Bruening stated to the firm of Chaffee Bros. & Co., the plaintiff's local agents at Carrington, N.D., at their office in said city, that he was now ready to buy the threshing rig if terms could be agreed on. There had been conversations between the agents and the defendant in regard to such purchase before. They talked over the price and terms of payment on this day, and during such talk Mr. Chaffee talked with Mr. Weego, the company's general agent at Fargo, over the telephone, and stated to him the price and terms proposed by the defendant. Weego stated that the defendant ought to pay certain sums that fall. The defendant said he could not, and Chaffee so repeated his answer to Weego, who then accepted the offer of the defendant and told Chaffee to let him have the rig. Chaffee told the defendant what Weego said, and further told him: "Mr. Weego accepted the offer, and the rig was his, and Mr. Houlihan will draw up the contract in accordance with our talk. * * * You can take the rig at any time." Immediately after this conversation over the telephone an order was drawn up and signed by the defendant, and sent by mail to Fargo, to the general agent, Mr. Weego. This order for the rig provided that it was taken subject to the approval of Reeves & Co., and contained a description of the property, price and terms of payment, and contained a provision that the title to the property should remain in Reeves & Co. until paid for in full, and that the freight was to be paid and settlement made by paying cash or giving notes at the time defendant received the property under the contract. This order was immediately sent by mail to the company's offices at Fargo, and on August 18th was accepted by letter to the defendant from Mr. Weego, and the letter mailed before 6 o'clock a. m. of August 19th. In this letter the general agent stated that the order was acceptable, and that settlement papers had been prepared and sent to Chaffee Bros. & Co. On August 17th, in the afternoon, the defendant attempted to countermand and revoke the order that he had previously signed that day, and wrote Chaffee Bros. & Co. at Carrington and Reeves & Co. at Fargo that he cancelled the order. He had ever since refused to accept the machine and to settle therefor by giving the notes and security provided for by the contract. Before these letters were written, and right after signing the order, it is claimed by respondent that the machine was delivered to the defendant. It is also claimed by respondent that the terms of the written order were...