Schmidt v. Thomas

• Decision Date: 28 January 1890
• Citation: 44 N.W. 771,75 Wis. 529
• Parties: SCHMIDT v. THOMAS.
• Court: Wisconsin Supreme Court

75 Wis. 529

44 N.W. 771

SCHMIDT

v.THOMAS.

Supreme Court of Wisconsin.

Jan. 28, 1890.

Appeal from circuit court, Waukesha county.Frisby, Gilson & Elliott, ( F. L. Gilson, of counsel,) for appellant.

Carney & Ryan, for respondent.

ORTON, J.

The defendant orally agreed to purchase from the plaintiff an organ, book, and stool, to be sent for by the plaintiff, for $65. The plaintiff sent for the organ, book, and stool, and his agent, one Mr. Norton, delivered the organ at the house where the defendant lived with his father and mother, on the next Sunday. Afterwards, Mr. Norton called on the defendant, and he said that he liked the organ first-rate, and asked about the book and stool. The book and stool were afterwards also delivered. After that, however, the defendant told the plaintiff that he would not keep the organ, and that he should take it away. This action was first tried before a justice, and the plaintiff recovered of the defendant $66, and, on appeal to the circuit court, the jury returned a verdict of the same amount. The learned counsel of the appellant correctly contends that the original contract is void, it being for the sale of goods of over $50, and no payment or delivery, and it not being in writing, and that the delivery of the organ on Sunday was also void. But we think the learned counsel contends incorrectly that there was no subsequent acceptance of the organ. He said to Norton, the agent of the plaintiff, that “he liked it first-rate,” and asked about the book and stool. This is very strong evidence of acceptance. He had it, and liked it first-rate. It was an admission that the organ had been delivered to him, and that he was satisfied with it. The evidence in the case of Amson v. Dreher, 35 Wis. 615, was that the defendant, at the place where it was stored, agreed to receive the wine, and to pay for it in future, and agreed to pay the warehouse charges on it, and went and looked at the wine. This court, by Mr. Justice LYON, held that this testimony tended to prove an acceptance of the wine by the defendant; and that, “if the defendant accepted the wine, neither the statute of frauds nor the alleged excess in filling the order is of any importance;” and further, that, “if the purchaser of goods, under an agreement otherwise void by the statute of frauds, accepts a delivery of the goods, or some part of them, either when the agreement is made or afterwards, such agreement thereby becomes a valid and binding...