Richards v. Burroughs

• Court: Michigan Supreme Court
• Writing for the Court: MORSE, J.
• Citation: Richards v. Burroughs, 62 Mich. 117, 28 N.W. 755 (Mich. 1886)
• Decision Date: 24 June 1886
• Parties: RICHARDS v. BURROUGHS.

28 N.W. 755

62 Mich. 117

RICHARDS v. BURROUGHS.

Supreme Court of Michigan

June 24, 1886

Error to Van Buren.

O.N. Hilton, for plaintiff.

Crane &amp Breck, for defendant and appellant.

MORSE J.

The plaintiff sued defendant in justice's court for 180 cords of wood, alleged to have been sold and delivered to him at Paw Paw, at the price of $1.25 per cord. He recovered a judgment of $286.13, there being some admitted credits. Defendant appealed to the circuit court for Van Buren county, where a trial was had, before a jury resulting in verdict and judgment for plaintiff in the sum of $300. Defendant brings error to this court.

It appears, without dispute, that, at the time of the alleged sale of this wood, a part of it was piled in the yard of plaintiff, at Paw Paw, and the balance was at Lawrence, some nine miles away. It was in process of being hauled to Paw Paw, and piled with the rest. Plaintiff claims that in February, 1884, defendant came into his office, (both of them living in Paw Paw,) and wanted to know what he was going to do with the wood he was piling in his yard. Plaintiff replied, he had it there for the purpose of sale. After some talk, the defendant bought the wood in the yard, and what was upon plaintiff's farm at Lawrence, which was to be delivered by plaintiff in the yard with the rest, and agreed to pay $1.75 per cord for the same. The defendant bought the wood to sell again, and was to pay for it as often as he took away $50 worth; the whole amount, however, to be paid, in any event, before January 1, 1885. The defendant denied that he contracted to buy the wood, and claimed that the arrangement was that he should sell the wood for the plaintiff on commission, and pay him $1.75 per cord for what he might sell.

The principal objection made to the judgment in this court is that the contract was within the statute of frauds, and therefore void. Evidence, however, was introduced upon the part of the plaintiff tending to show that after the contract was made, and the wood all hauled from Lawrence, and piled in the yard, the defendant took possession of it, and hired it repiled. If the jury believed this to be true, it was sufficient to take the case out of the statute. The court correctly instructed the jury to this effect.

It is claimed that the instructions were misleading, in the respect that they gave the jury to understand that the act of repiling by the defendant was necessarily an acceptance of the goods as sold to him; that the court did not sufficiently inform the jury of the defendant's claim that he was selling the wood on commission; and that the taking of possession and repiling was not inconsistent with his claim; and that if the repiling was done under such a claim, it could not be used as an acceptance or delivery of the wood, to take a void sale out from the bar of the statute. We have carefully examined the charge of the court and do not think it open to this complaint. The circuit judge plainly set out before the jury the respective claims of the parties as to the arrangement made in plaintiff's office in reference to the wood. He then properly instructed them that they were entitled to take into consideration, not only what was said and done at the office, but all the testimony in the case of the subsequent acts, conduct, and dealings of the parties, so far as the same threw any light upon what the true nature of that transaction was. He also said, in effect that the talk in the office, as claimed by plaintiff, would not constitute a valid sale, without a delivery of the...