Rindskopf v. De Ruyter

• Decision Date: 11 June 1878
• Court: Michigan Supreme Court
• Parties: Elias Rindskopf et al. v. John DeRuyter

39 Mich. 1

Elias Rindskopf et al. v. John DeRuyter

Supreme Court of Michigan

June 11, 1878

Submitted February 1, 1878

Case made after judgment from the Superior Court of Grand Rapids.

Assumpsit. Plaintiffs had judgment below.

Judgment reversed, and judgment entered for defendant with costs of both courts.

Taggart Simonds & Fletcher for plaintiffs. Acceptance of goods sold under a verbal agreement makes the contract valid from the date of the agreement, by relation. Vincent v Germond, 11 Johns. 283; Bailey v. Sweeting, 9 C. B. (N. S.), 843; Seymour v. Davis, 2 Sandf. 239; McKnight v. Dunlop, 5 N. Y., 537; Marsh v Hyde, 3 Gray 331; 2 Schouler's Pers. Property, 448; Townsend v. Hargraves, 118 Mass. 325; Bird v. Munroe, 66 Me. 337; 9 Amer. Law Rev., 434.

Blair, Eggleston, Kingsley & Kleinhans, for defendant.

Marston, J., Graves, J. Campbell, C. J. and Cooley, J. concurred.

OPINION

Marston, J.

Plaintiffs, co-partners in trade at Milwaukee in the State of Wisconsin, sold to defendant, doing business in Grand Rapids in the State of Michigan, spirituous liquors. This action was brought to recover a balance claimed to be due upon such sale.

The defendant interposes three objections to the right of plaintiffs to recover.

First, that the agreement under which these liquors were sold and delivered was entered into in Michigan, and therefore void under Comp. L. § 2137.

Second, that by the terms of the original agreement defendant had the right to examine the goods at Grand Rapids and return them if not as represented; that he was dissatisfied with the goods and offered to return them; that a part was returned, and under an arrangement made with plaintiffs' agent in Grand Rapids a deduction was made upon the price of the goods retained; that the effect of such right of examination, return, offer to return and reduction in price, determined that the actual sale was made in this State, aside from all question of the validity of the contract considered as a Wisconsin contract or sale; and

Third, that if the contract was to be considered as a Wisconsin contract it was void under the statute of frauds of that State.

The referee in his finding of facts sets forth the circumstances of the sale: that defendant gave to plaintiffs' agent, who called upon him in Grand Rapids, a verbal order for the liquors referred to; that the sale was to be on ninety days' credit, and the defendant was at liberty to return the liquors if not as represented by the agent; "that the agent was to submit the order for the goods to plaintiffs, and if it met their approval, they should be sent."

This finding brings this case clearly within the decisions of this court in Kling v. Fries, 33 Mich. 275 and Webber v. Howe, 36 Mich. 150, and disposes of the first objection. In accordance with the rule laid down in these cases, the original agreement in this case must be considered as made in the State of Wisconsin and not in Michigan.

As to the effect of the offer to return the goods and the reduction made in the price as set forth in defendant's second objection, I do not see how this can be considered as the sale upon which the acceptance of the goods was made and the purchase price determined as claimed. It is true that here was an offer made to return the goods because not as represented. A part however had been sold by defendant at this time and could not therefore be returned, and there was also a reduction made from the contract price upon what was retained. At most this was but a modification of the original agreement. It did not abrogate or annual that agreement. It was rather a recognition of the validity and binding effect of the original agreement. The change made was a reduction of five cents per gallon from the price fixed in the original agreement. In all other respects the original agreement stood, and the rights of each party would be governed by the first agreement subject to the reduction referred to. Assuming as we must, under the decisions referred to, that the original agreement, under the findings of the referee, must be regarded as a Wisconsin contract, and therefore valid, unless in violation of the statute of frauds of that State, I certainly do not see how any subsequent agreement could legally have been entered into in this State, which could have the effect claimed. Our statute declares that all "contracts or agreements relating" to the sale of liquors shall be utterly null and void. Under this statute the subsequent agreement entered into between plaintiffs' agent and defendant in Grand Rapids, in relation to a reduction in price, may be treated as a nullity, thus leaving the original agreement in full force and unmodified. An agreement which the statute then in force declared to be null and void, could not destroy, change or affect a previous valid agreement between the same parties.

This being a Wisconsin contract, was there an acceptance of the goods in compliance with the statute of frauds of that State? The statute of Wisconsin declares such a sale void, unless 2d, "the buyer shall accept and receive part of said goods, or the evidences or some of them of such things in action." By the terms of the agreement the goods were to be shipped by plaintiffs at Milwaukee, to Grand Rapids by boat, and at defendant's risk, he to pay freight. The goods were so shipped about the 11th of February and received by defendant somewhere from the 12th to the 15th of the same month. A...