Scott v. T. W. Stevenson Co.
| Decision Date | 25 June 1915 |
| Docket Number | Nos. 19,140-(116).,s. 19,140-(116). |
| Citation | 130 Minn. 151 |
| Parties | MAX SCOTT v. T. W. STEVENSON COMPANY.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
The case was tried before Hale, J., who, when defendant rested, denied plaintiff's motion for findings in his favor on the counterclaim, made amended findings and ordered judgment in favor of defendant for $1,037.99. Plaintiff's motion for a new trial was denied. From the judgment entered pursuant to the order for judgment, plaintiff appealed. Reversed.
Orr, Stark & Kidder, for appellant.
Snyder & Gale and Frank J. Morley, for respondent.
Plaintiff is located in the city of New York, and is, and for several years has been, a manufacturer of fur lined and plush lined coats. Defendant is located in the city of Minneapolis, and is, and for many years has been, a wholesale dealer in coats, caps, gloves and similar articles, and is also engaged in manufacturing such articles. For at least two seasons prior to the transactions in controversy, defendant had purchased fur lined and plush lined coats from plaintiff to resell to its customers engaged in the retail trade. The business was conducted in this manner: In the fall of each year, defendant purchased from plaintiff enough coats of the several different sorts to supply each of its traveling salesmen with one of each sort for use as a sample. Thereafter the salesmen exhibited these samples to the retail dealers and took orders from them for like coats, and defendant, from time to time, ordered from plaintiff the number required to fill the orders so obtained.
On November 2, 1909, plaintiff's representative visited defendant at its place of business in Minneapolis and made a parol contract to furnish defendant with coats for the following season, and took an order signed by defendant for 15 each of 19 different grades and styles of coats to be delivered not later than December 10, for use as samples. The several grades and styles were designated in the order by numbers and the price to be paid for each coat was specified therein. At the bottom of the order plaintiff's representative endorsed and signed the following:
This order was made in duplicate and one copy was retained by defendant and the other forwarded to plaintiff. Defendant had 17 traveling salesmen, and on November 30 wrote plaintiff as follows:
To which plaintiff replied as follows:
These sample coats were manufactured and delivered, and defendant placed them in the hands of its traveling salesmen who proceeded to take orders for like coats from retail dealers. By letter dated January 12, 1910, plaintiff notified defendant that "prices on all fur coats have been advanced, and in conformity with this advance we have raised the prices on your various numbers as follows," giving a list of prices. On January 14, defendant replied calling attention to the original order and the stipulation as to prices therein, and insisted that it was entitled to purchase at such prices. On February 2, 1910, defendant mailed plaintiff an order for 480 coats at the prices stated in the original order. Plaintiff refused to fill this order at such prices and so notified defendant on February 5. Defendant refused to pay the advanced prices and proceeded to manufacture the coats itself. The purchase price for the coats shipped under the original order amounted to the sum of $6,355.70 of which defendant had paid the sum of $4,568.20 before plaintiff refused to fill the order of February 2, leaving a balance due of $1,787.50. Defendant refused to pay this balance and plaintiff sued therefor. Defendant admitted that this amount was due plaintiff but interposed a counterclaim for damages in the sum of $3,865.49 for breach of the contract. By consent the cause was tried before the court without a jury. The court found that defendant was entitled to damages in the sum of $2,825.49, deducted the $1,787.50 due plaintiff from this amount, and rendered judgment in favor of defendant for the balance of $1,037.99 and interest thereon. Plaintiff appealed from the judgment.
The court made quite extended findings of fact and among other things found as follows:
"That on or about the 2nd day of November, A. D., 1909, plaintiff and defendant made and entered into a certain contract, whereby plaintiff agreed to manufacture for and sell to defendant, and defendant agreed to purchase from plaintiff, certain fur and plush lined coats, at and for certain prices specifically named, amounting in all to the gross sum of six thousand three hundred fifty-five and 70/100 ($6,355.70) dollars; that at the time said contract was made it was understood by and between both plaintiff and defendant that defendant was purchasing said coats as sample coats with the intention of placing the same in the hands of its traveling salesmen as samples, and with the intention of soliciting orders from the trade for coats of like character to the said samples; that as a part of the consideration for the purchase by defendant of said sample coats and as a part of said contract, it was further agreed by and between plaintiff and defendant that the plaintiff would manufacture for and sell to defendant such further and additional coats of like kind and similar to said samples as might be required by defendant to satisfy the requirements of its trade for the next ensuing selling season which would commence about the 1st day of December, 1909, and extend through the winter and following spring; that it was agreed by and between the plaintiff and defendant that said additional coats would be sold by plaintiff to defendant at the same prices stipulated in said contract for said sample coats up to March 1st, 1910, and after said date it was agreed that said prices should not be advanced except upon thirty (30) days' notice first given by plaintiff to defendant, it being understood by and between both plaintiff and defendant that such advanced prices should not in any event become effective until April 1st, 1910."
The above finding and the contract set forth therein are attacked on several grounds.
1. Plaintiff contends that the contract is within the statute of frauds and void. This statute, so far as here material, provides:
"Every contract for the sale of any goods * * * for the price of fifty dollars or more, shall be void, unless: (1) A note or memorandum of such contract is made and subscribed by the parties to be charged therewith; or (2) the buyer accepts and receives part of such goods * * * or, (3) the buyer, at the time, pays some part of the purchase money." Section 6999, G. S. 1913.
The delivery and acceptance of a part of the goods subsequent to the making of the agreement, but under and pursuant to the agreement, is sufficient to satisfy this statute. McCarthy v. Nash, 14 Minn. 95 (127); Gaslin v. Pinney, 24 Minn. 322; Ortloff v. Klitzke, 43 Minn. 154, 44 N. W. 1085. The court found that the agreement for the sale of the sample coats, and the agreement for the sale of the other coats in controversy, were parts of one entire contract; and the evidence is abundant to sustain such finding. Sample coats to the value of more than $6,000 were delivered, received and accepted under and pursuant to the contract, and more than $4,000 of the purchase money for the coats so delivered was paid and accepted. This was sufficient to satisfy the above statute.
2. Plaintiff contends that, under the doctrine of Bailey v. Austrian, 19 Minn. 465 (535), and Tarbox v. Gotzian, 20 Minn. 122 (139), the contract is void for indefiniteness, uncertainty and want of mutuality, except as to the coats specified in the written order of November 2, 1909. In Bailey v. Austrian, plaintiff, a foundryman, promised to purchase and defendant to furnish, at specified prices, all the pig iron wanted by plaintiff in his business during the remainder of the year. The court said "there is no absolute engagement on plaintiff's part to `want,' and of course no absolute engagement to purchase any iron of defendant;" and held the contract invalid for the reason that plaintiff had not obligated...
To continue reading
Request your trial