Saratoga Land and Investment Company v. Jensen

• Decision Date: 06 May 1912
• Docket Number: 658
• Parties: SARATOGA LAND AND INVESTMENT COMPANY v. JENSEN
• Court: Wyoming Supreme Court

123 P. 415

20 Wyo. 323

SARATOGA LAND AND INVESTMENT COMPANY v. JENSEN

No. 658

Supreme Court of Wyoming

May 6, 1912

ERROR to the District Court, Carbon County; HON. DAVID H. CRAIG Judge.

The material facts are stated in the opinion.

Affirmed.

Armstrong & Brimmer and George Clammer, for plaintiffs in error.

The facts of the case called for the protection afforded by the statute of frauds. A sale is claimed by the plaintiff and disputed by the defendants. A sale was not evidenced by a written contract, note or memorandum subscribed by the party sought to be charged, nor was there a delivery of any part of the property or payment of any part of the purchase price. S H. Clammer was an entire stranger to the transaction, and the receipt signed by him could not and did not remove the contract from the bar of the statute. A memorandum to be sufficient must not only be signed by the party to be charged, but the essential terms of the agreement must be capable of ascertainment from the writing itself, or by reference in it to something else. Any defect in it cannot be supplied by parol proof. (20 Cyc., 258; Eppich v Clifford, 6 Colo. 493; Ellis v. Denver, &c., R. Co., 7 C. A. 350; Salomon v. McRae, 9 C. A. 23; Williams v. Morris, 95 U.S. 444; 20 Cyc., 261; Mentz v. Newwitter (N. Y.) 11 L. R. A. 97; McGovern v. Hern, (Mass.) 25 Am. St. 632; Porter v. Patterson, (Ind.) 85 N.E. 797; Elwell v. Hicks (Ill.) 87 N.E. 316; Frahm v. Metcalf (Neb.), 106 N.W. 227; Thompson v. Burns, (Idaho), 99 P. 111; Mertz v. Hubbard, (Kan.) 8 L. R. A. (n. s.) 733.) A mere agreement to credit the price of goods on an account due from the seller to the buyer is not a sufficient part payment, unless a receipt to that effect is given, or the price is actually credited in the seller's books. (20 Cyc., sec. 252; Story on Sales, sec. 273; Gailbraith v. Holmes (Ind.) 43 N.E. 575; Brabin v. Hyde, 32 N.Y. 523; Gorman v. Brossard, (Mich.) 79 N.W. 903; Milos v. Covacevich (Or.) 66 P. 914.)

N. R. Greenfield, for defendant in error.

The party sought to be charged with the contract of sale is Ludlum, and not Clammer, who claims to be a total stranger to the transaction. Ludlum is not a party to the action and cannot, therefore, interpose the point that he did not sign a writing charging him with the contract. Mr. Clammer is not a party to the contract. The first sub-division of the statute of frauds cannot, therefore, apply in this case. It is not claimed here that the receipt that Clammer gave was a sufficient note or memorandum to comply with the statute. What we do contend is that the receipt was evidence of the full payment of purchase price at the time and place of sale made by the purchaser to the seller or his agent. There could not be a manual delivery of the plow, nor was that necessary. The receipt given for the plow with the consent and approval of the seller was a sufficient delivery, acceptance and receipt. (20 Cyc. 251.) We believe that the evidence shows a complete payment of the purchase price. It is not material whether the money was paid by Jensen directly to Ludlum, and then by Ludlum to Clammer, or whether it was paid by Jensen directly to Clammer, who claimed a lien on the plow.

However, had no part of the purchase price been paid at the time of the sale, or if the receipt constitutes no evidence of the payment of such purchase price, still the sale cannot be avoided under the statute of frauds, it appearing that money to be paid was not the only consideration to be received for the plow, but a compromise of a disputed matter which was settled on the basis proposed by Clammer. It is true that the evidence is in conflict as to the transaction, but it is sufficient to support the finding and will, therefore, not be disturbed on appeal. (Harden v. Card, 15 Wyo. 217, 88 P. 217.)

BEARD, CHIEF JUSTICE. SCOTT, J., and POTTER, J., concur.

OPINION

BEARD, CHIEF JUSTICE.

This action was brought in the district court of Carbon county by the defendant in error, Gus Jensen, against the plaintiffs in error, The Saratoga Land and Investment Company and S. H. Clammer, to recover the possession of certain plows. The case was tried to the court without a jury, and judgment rendered in favor of the plaintiff below for the possession of the property and one hundred dollars damages. Defendants below bring error.

Both Jensen and the Investment Company claimed title to the property by purchase from one Ludlom; Jensen claiming to have purchased the property on July 1, 1909, and the Investment Company July 5, 1909. The defendants below claimed that Jensen's alleged purchase was void because the property was of the value of fifty dollars and more, was not evidenced by any writing, the property was not delivered, and no part of the purchase money paid; and that, therefore, the contract of sale came within the statute of frauds and was void. The statute is as follows: "Any contract for the sale of any goods,...