Shaw v. Manville

• Decision Date: 27 February 1895
• Citation: 39 P. 559,4 Idaho 369
• Parties: SHAW v. MANVILLE
• Court: Idaho Supreme Court

39 P. 559

4 Idaho 369

SHAW v. MANVILLE

Supreme Court of Idaho

February 27, 1895

STATUTE OF FRAUDS-SECTION 6009, SUBDIVISION 4 OF THE REVISED STATUTES CONSTRUED.-S. was a dealer in lumber, etc. M. desiring to purchase certain tanks to be used in mining operations applied to S. therefor, and on being informed that said articles were not kept by S., requested him to procure them for him from some house in Oregon or California, giving S. a description and specifications of the articles required, to be delivered free on board cars at Boise City, Idaho. S ordered the articles from a house in Portland, Oregon, and M not being at home on their arrival, S. stored them in the warehouse of N. On M.'s return S. notified him of the arrival of the goods, at the same time exhibiting to him the bill of lading thereof, and informing him where he had stored them. M. said "he guessed it was all right," and declining to examine the goods, told S. he would remove them in a few days and pay the balance due on them; paid S. $100 on the purchase price. Held, not to be a sale within section 6009 of the Revised Statutes of Idaho.

DISCRETION OF JURY AS TO GENERAL OR SPECIAL VERDICT.-In an action for the recovery of money only, it is within the discretion of the jury to find a general or a special verdict. (Idaho Rev. Stats., sec. 4397.)

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Judgment modified by the deduction of forty-seven dollars, and cause remanded, with directions; costs of appeal to taxed equally against respondent and appellant.

Samuel H. Hays and Henry Z. Johnson, for Appellant.

This being an action for goods sold and delivered, an actual delivery must be shown--a complete relinquishment of all rights of the vendor. He cannot keep the goods and get the price also. (Atwood v. Lucas, 53 Me. 508, 89 Am. Dec. 713; Hart v. Tyler, 15 Pick. 171; Messer v. Woodman, 22 N.H. 172, 53 Am. Dec. 241; 21 Am. & Eng. Ency. of Law, 576.) Did appellant pay at the time of the making of the contract some part of the purchase money? The only payment was made on July 22d. Payment was not made at the time of the making of the contract, the agreement having been made on June 29th and no new agreement having been made on July 22d. (Hunter v. Wetsell, 57 N.Y. 375, 15 Am. Rep. 508; Bates v. Chesebro, 36 Wis. 636; Hanson v. Roter, 64 Wis. 622, 25 N.W. 530; Hollenbeck v. Cochran, 20 Hun, 416; Kerkhof v. Atlas Paper Co., 68 Wis. 674, 32 N.W. 766.) Did the appellant accept and receive the goods? It is well settled that there must be both an acceptance and a receipt to take the case out of the statute; acceptance alone or receipt alone is not sufficient. (Jamison v. Simon, 68 Cal. 17, 8 P. 502.) To constitute acceptance and receipt there must be something besides mere words, there must be some act of the parties amounting to a transfer of possession. The property must pass unconditionally into the absolute possession and control of the buyer, and must be finally accepted by him. (Shindler v. Houston, 1 N.Y. 261, 49 Am. Dec. 316, and note; Malone v. Plato, 22 Cal. 103; Stone v. Browning, 51 N.Y. 211; Stone v. Browning, 68 N.Y. 598; Shepherd v. Pressey, 32 N.H. 57; Hart v. Tyler, 15 Pick. 171; Scotten v. Sutter, 37 Mich. 526; Knight v. Mann, 118 Mass. 143; Knight v. Mann, 120 Mass. 219; Dole v. Stimson, 21 Pick. 384; Coffin v. Bradbury, 3 Idaho 730, 35 P. 715.) Where stipulations have been made by the parties and accepted by the court they should be enforced as a matter of absolute legal right. (Matter of Petition of New York etc. Ry. Co., 98 N.Y. 447 (452); Douglass v. Rogers, 4 Wis. 304; Staples v. Parker, 41 Barb. 648; McCann v. McLennan, 3 Neb. 25; Neill v. Tarin, 9 Tex. 256. See, also, Mahony v. Marshall, 3 Idaho 284, 31 P. 809.) The stipulation provided that appellant should have "until May 5th" in which to prepare, serve and file proposed statement on motion for new trial. The statement was filed and served on May 5th. It was therefore in time. (Thomas v. Dougless, 2 John. Cas. 226; Penn. Placer Min. Co. v. Schreiner, 14 Mont. 121, 35 P. 878; Gottlieb v. Fred W. Wolf Co., 75 Md. 126, 23 A. 198.) It was not necessary to plead the statute of frauds. The making of the contract was denied and that is sufficient to raise the issue. (Feeney v. Howard, 79 Cal. 525, 12 Am. St. Rep. 162, 21 P. 984; Springer v. Kleinsorge, 83 Mo. 152; Duffy v. O'Donovan, 46 N.Y. 223; Bliss on Code Pleading, sec. 353.)

J. R. Wester, for Respondent.

If the contract in question were within the statute of frauds it could not avail the defendant in this appeal for the reason it was not pleaded in the court below. (Kraft v. Greathouse, 1 Idaho 254; McLees v. Hall, 10 Wend. 426; Marine Ins. Co. v. Hodgson, 6 Cranch (U.S.), 206; Some v. Skinner, 16 Mass. 348; Gardner v. Armstrong, 31 Mo. 535; Sherwood v. Saxton, 63 Mo. 78; Lewis v. Stewart, 10 How. Pr. 513; Osborne v. Endicott, 6 Cal. 149-358, 65 Am. Dec. 498; Burt v. Wilson, 28 Cal. 632, 87 Am. Dec. 142; Jones v. Lloyd, 117 Ill. 601, 7 N.E. 119; Pomeroy on Specific Performance of Contracts, secs. 140, 141.) The plaintiff in his complaint alleges part payment of the purchase price, which is not only not denied but admitted by defendant, not alone by his failure to deny it, but by introducing the check showing part payment of goods for the purpose of shifting the responsibility from himself to the Idaho Gold Extraction Company, which is as effectual to take the cause out of the statute of frauds as if the original contract had been in writing and signed by the defendant. (Idaho Rev. Stats., sec. 6009, subd. 4; Tyson v. Wells, 2 Cal. 122.) Under the well-established doctrine laid down by this court in the case of Coffin v. Bradbury, the part payment on July 22d, is sufficient to take the case out of the statute of frauds. (Coffin v. Bradbury, 3 Idaho 770, 35 P. 715.) When was the contract of sale made? The goods arrived about July 16th. Shaw notified Manville of their arrival. He went out to see him and notify him (Manville) of their arrival and learned from defendant's wife that defendant had gone to the mountains and that defendant wanted Shaw to store them; this was done, and about July 22d, Manville returned home and immediately went to plaintiff's office, was shown a memorandum of the goods, said he had no doubt they were all right, paid $ 100 on the purchase price, and credit was given him for the rest. This consummated the sale. (2 Kent's Commentaries, 704, note.) It was as complete a delivery and possession as the subject matter reasonably admitted. (Montgomery v. Hunt, 5 Cal. 226.) This was a sufficient delivery and acceptance of the goods. (Williams v. Lerch, 56 Cal. 330; Hazard v. Cole, 1 Idaho 283, 284; Tyson v. Wells, 2 Cal. 122; Cartwright v. Phoenix, 7 Cal. 281.) The question of acceptance is a question for the jury and their finding is conclusive. (Galvin v. McKenzie, 21 Or. 184, 27 P. 1039; Baker on Sales, sec. 282a.)

HUSTON, J. Morgan, C. J., and Sullivan, J., concur.

OPINION

HUSTON, J.

--Shaw, a lumber dealer at Boise City, was applied to by Manville, defendant, for certain tanks, to be used in mining operations. Shaw, not being able to furnish either the tanks, or the materials for making the same, suggested to Manville that he (Shaw) could procure the same for him (the defendant) from Oregon or California, and thereupon received a statement from Manville giving a description of the character and dimensions of the required tanks. Shaw sent the memorandum to a house in Portland, and received in reply a statement fixing the prices at which the tanks would be furnished to him. Shaw submitted this statement to Manville, and Manville requested him to telegraph for the tanks, which he did. Upon the arrival of the tanks, Shaw went to the house of Manville, and, not finding him at home, informed his (Manville's) wife that the tanks had arrived, and was informed by said wife that her husband wished to have the tanks stored until his return. Thereupon Shaw had the tanks stored in the warehouse of one Nourse. A few days after, Manville called upon Shaw, who informed him that the tanks had arrived, and that he could look at them. Manville replied that he "guessed they were all right," and thereupon stated that he was not quite prepared to remove them, and gave Shaw his individual check for $ 100 in part payment of the price of the tanks. The plaintiff brought an action for the value of said tanks, less the $ 100 paid. The complaint is for goods, wares, and merchandise sold and delivered, or rather for the balance due therefor. The answer is a general denial. The complaint is latitudinous, and the answer technical. The issues would have been more satisfactorily presented had the pleaders given more recognition to the statutes, in framing and presenting them. Subdivision 2, section 4168 of the Revised Statutes of Idaho provides that the complaint shall contain "a statement of the facts constituting the cause of action in ordinary and concise language." The complaint in this case does not comply with either the letter or spirit of this statute. It is a general allegation of indebtedness for a balance due the plaintiff from the defendant for goods, wares, and merchandise sold and delivered. This is simplifying pleadings, no doubt, but not upon the lines contemplated by the code. Instead of narrowing the issues to be tried, it amplifies them, and extends opportunity for endless technical objections, all of which are taken advantage of by the defendant. We might feel constrained to enter upon a consideration of the various questions raised and discussed upon the pleadings in this case, were we not admonished by the provisions of our statutes. (See secs. 4, 4207.) The cause was tried by the court with a jury,...