Richey v. Robertson

• Citation: 169 P. 99,86 Or. 525
• Parties: RICHEY v. ROBERTSON. [*]
• Decision Date: 20 November 1917
• Court: Supreme Court of Oregon

169 P. 99

86 Or. 525

RICHEY v. ROBERTSON. ^[*]

Supreme Court of Oregon

November 20, 1917

In Banc.

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Action by G. M. Richey against Walter G. Robertson. From a judgment for plaintiff, defendant appeals. Reversed, and new trial directed.

This was an action to recover for the price of a piano which the complaint alleged the plaintiff had sold and delivered to the defendant.

The original complaint alleged merely that the piano was "sold" to the defendant, but upon argument of a demurrer the plaintiff asked and obtained leave to insert by interlineation the words "and delivered" after the word "sold." No objection by the defendant appears to the order of the court permitting such amendment. The proceedings relative to the amendment not having been entered upon the journal, the court, subsequent to the trial, made a nunc pro tunc order setting forth the facts above stated, and this, among other matter, is specified as error.

In the course of the trial defendant objected to certain oral testimony offered by plaintiff, on the ground that the alleged contract was for the sale of personal property of over the value of more than $50, and that oral evidence of such a nature was prohibited by the statute of frauds. In ruling upon this the court, in the hearing of the jury, made the following remark:

"The sale of personal property does not have to be in writing when over $50. That is in connection with an agreement on breach of a contract of sale. This is an executed agreement. The objection is overruled"--which ruling was excepted to, and his exception was allowed.

Upon the trial several objections were made by defendant as to the rulings of the court upon the admission of testimony, which will be further stated and considered in the opinion.

At the conclusion of plaintiff's case, defendant moved for a nonsuit, which motion was denied, and such denial is assigned as error. There was also a motion for a directed verdict which was denied.

The court gave the following instructions to the jury:

"I instruct you, gentlemen of the jury, that in law a sale is the agreed transfer of property having some value, to another for a valuable consideration. A sale may be shown by facts and circumstances as well as by direct proof.

"I further instruct you that, in order to make a completed sale, it is not necessary that any money actually change hands at the time of the agreement. If the minds of the parties meet on the property bargained for, that is, if one party sells and the other one buys the property bargained about, it is not necessary that any money actually change hands at the time of the transfer, as in law a promise to pay constitutes a valuable consideration.

"I further instruct you that if you believe from the evidence that between the 1st day of September, 1916, and the 20th day of November, 1916, the plaintiff, at the request of the defendant, sold and delivered to the defendant the piano mentioned in testimony, and that defendant agreed to pay $150 on said piano on or about the 16th day of November 1916, and that said sum has not been paid nor any part thereof, then it will be your duty to find for the plaintiff in the sum of $150.

"I further instruct you that if you believe from the evidence that, at the time mentioned in testimony, the plaintiff and the defendant entered into an agreement wherein and whereby the terms of which the plaintiff agreed to and did sell the defendant the piano in controversy, and the defendant in consideration therefor agreed to and did buy said piano and agreed to pay $150 on the purchase price of same on or about the 16th day of November, 1916, and that the defendant has not paid for the same, then this would be a completed sale, and it would be your duty to find for the plaintiff in the sum of $150.

"There was some testimony in this case that the defendant notified the plaintiff to come and get the piano in question. I instruct you, a vendor of goods is under no obligation to and the law does not require him to, receive goods back after a complete sale, but, on the other hand, it is the duty of the purchaser to pay the price, if any, agreed to pay for goods actually purchased.

"I instruct you that delivery of an article for test or trial is not a delivery on sale. And if you find in this case that there was a delivery of a piano by plaintiff to defendant for test or trial, and not as absolute owner then the plaintiff cannot prevail, and your verdict should be for the defendant.

"I instruct you that the word 'sale' has a particular and legal meaning, and before you can decide that there was a sale in this case of the piano in question by plaintiff to defendant, you must find from the testimony that the minds of both parties met, that is, that there was a positive unequivocal agreement on the part of the plaintiff to part with the title of said piano and vest the same in defendant, at time of agreement, whether it was paid for or not, and an instant agreement by defendant then and there to receive and accept title to said piano as his absolute property, without regard to whether he paid for it or not. There must have been no conditions whatever to be performed by either party prior to change of ownership of said piano and, if you find there were conditions to be performed or any reservations made by either party, then your verdict should be for the defendant; but I instruct you that title might pass from the seller to the purchaser notwithstanding the seller was to give the purchaser a bill of sale, provided it was the intention of the parties that title should pass.

"I instruct you that there has been a motion on part of defendant for a nonsuit, and that the court refused the same, yet you are not to consider such fact or decision by the court in any manner governing you or deciding the case or directing a verdict. You must be governed entirely by the evidence and these instructions which I give you.

"An acceptance of an offer to sell need not be by any particular words. If the seller offers to sell, and the buyer in any manner communicates to the seller his acceptance of the offer, this would be an acceptance of the offer, in order for goods to be delivered according to the terms of the order or communication.

"I instruct you that, during the trial of this action, the court in ruling upon questions of evidence may have expressed its opinions as to the law at the time, but that was a matter relating entirely to questions involved, and you are not to be governed by the same in arriving at your verdict, but you are to take the law of the case entirely from these instructions.

"I instruct you that there has been some testimony in this case relative to what the wife of defendant may have said to plaintiff not in the presence of defendant, about a sale, but that was what is classed as an admission on her part; that she is not a party to this action, and does not in any manner bind the defendant, nor would it be any evidence of a sale. You are therefore further instructed that you are to receive such admissions, if any were made, with caution and only as affecting the testimony and credibility of that witness."

Defendant duly excepted to instructions 1, 2, 3, 4, 5. Defendant also excepted to an oral instruction of the court to the jury that, if they find for the plaintiff, they should find for $150, and so read and submitted a form of verdict to the jury containing "$150," as invading the province of the jury. There was also an exception to the refusal of the court to give the following instructions:

"I instruct you that, under the view the court takes of the law in this case, it is your duty to find for the defendant, and your verdict should be for the defendant.

"I instruct that there has been some testimony in this case that defendant's wife on one occasion admitted that there was a sale of the piano in question by plaintiff--not in the...