Sergeant v. Dwyer

• Court: Minnesota Supreme Court
• Writing for the Court: COLLINS
• Citation: Sergeant v. Dwyer, 44 Minn. 309, 46 N.W. 444 (Minn. 1890)
• Decision Date: 28 August 1890
• Parties: SERGEANT v DWYER.

44 Minn. 309

46 N.W. 444

SERGEANTvDWYER.

Supreme Court of Minnesota.

Aug. 28, 1890.

(Syllabus by the Court.)

1. Plaintiff and defendant entered into a written agreement for the sale and purchase of a stock of merchandise. No question was raised as to the sufficiency of the writing as a contract between the parties except in respect to the sale and purchase of “all soiled or damaged goods at valuation.” Held, that a binding and enforceable contract was made, and that all goods of the character above mentioned were sold and purchased at their value.

2. What goods in the stock were soiled or damaged, as well as their value, would be the subject of inquiry to be ascertained and determined as any other question of fact.

Appeal from district court, Freeborn county; FARMER, Judge.

B. S. Lewis, for appellant.

D. F. Morgan and John Whytock, for respondent.

COLLINS, J.

Appellant, Dwyer, and respondent, Mrs. Sergeant, made and entered into a contract in writing, as follows: “Albert Lea, Minn., Nov. 3, 1888. Daniel E. Dwyer bought of Mrs. W. P. Sergeant all the stock of merchandise located in H. D. Brown and Simms' store, in the city of Albert Lea, including fixtures, the amount to be taken at the supposed cost price, with ten per cent. off, and the said cost to be determined as marked on the goods when examined yesterday, private mark ‘transfixed’ and ‘handiwork,’ and said D. E. Dwyer pays forty per cent. on the dollar, after deducting the ten per cent. All soiled or damaged goods at valuation, cash payment on delivery. MRS. W. P. SERGEANT. D. E. DWYER.” After invoicing about two-thirds of the stock of merchandise mentioned in the writing, the soiled and damaged goods therein, and the value of the same having been agreed upon by the parties as they proceeded with the invoice, a dispute arose as to the cost mark or price of a certain article, whereupon appellant refused to proceed further with the invoice, or to complete his purchase. On the trial he objected to the introduction of the writing in evidence, and also to testimony tending to show that subsequent to the execution of the agreement, and prior to any invoicing under it, the parties verbally stipulated that in case they could not agree the value of any or all of the soiled and damaged goods in stock should be fixed and determined by one Crane. The objections were overruled by the court. Those urged to the contract, as evidenced by the writing, were indefiniteness and uncertainty in its terms, and that the quantity and price of the different classes of goods were not, and could not be, determined from it; that, because it contained the words “all soiled and damaged goods at valuation,” the agreement was incomplete, non-enforceable, and void. If this position be incorrect there is no reversible error in the case. At common law, mutual executory contracts for the sale and purchase of personal property were binding upon the parties, without regard to the price or value of the property involved, or the method by which the contract could be proven. The...