Simpson v. Krumdick

• Decision Date: 12 October 1881
• Citation: 10 N.W. 18,28 Minn. 352
• Parties: SIMPSON v KRUMDICK.
• Court: Minnesota Supreme Court

28 Minn. 352

10 N.W. 18

SIMPSONvKRUMDICK.

Supreme Court of Minnesota.

Filed October 12, 1881.

Appeal from order of district court, county of Winona.

Wilson & Gale, for respondent.

Lloyd Barber, for appellant.

GILFILLAN, C. J.

Action to recover the price of about 1,100 bushels of wheat, at $1.04 per bushel, which plaintiff claimed to have sold to defendant. The agreement for the sale was oral, no part of the purchase money was paid, and the principal question on the trial was whether there was a sufficient acceptance and receipt by defendant of the wheat, or any part thereof, to make the agreement valid under the statute of frauds. The wheat lay in three piles in the plaintiff's warehouse. The agreement was made at that place, and after some examination by defendant. The evidence of the plaintiff indicated that defendant was satisfied with the examination, and agreed to take the wheat as it was. The evidence of the defendant indicated that there was to be 3,400 bushels in all, and the largest pile throughout was to be of the same quality as it appeared on top. Defendant was to clean, sack, and weigh the wheat in the warehouse. Plaintiff testified he agreed to accept the defendant's weight, and defendant testified that plaintiff was to send a man to see it weighed. Nothing was said as to when the wheat was to be paid for, nor when defendant was to remove it from the warehouse, nor whether it was to be paid for or taken away first; but it appears to have been understood that defendant was to take it from the warehouse. Plaintiff delivered to defendant the key of the warehouse, and the latter went with his servants, his fanning mill, and sacks to the warehouse and began to clean the wheat in the largest pile, and to put it in the sacks, and continued until he had cleaned and sacked from 10 to 15 bushels, when, as he says, he found the wheat in the pile did not correspond in quality with that on top. He thereupon stopped cleaning, and soon notified plaintiff that he would not take the wheat.

In regard to the acceptance required by the statute of frauds, the court instructed the jury that “acceptance within the meaning of the statute does not mean such an acceptance of the property, as being satisfactory as to quantity and quality, as to preclude the buyer from afterwards questioning it. That is not the acceptance meant by the statute. There may have been an acceptance within the meaning of this statute that would not be an acceptance of the property in quantity or quality so as to preclude the buyer from afterwards questioning them.” It may be doubted that this general proposition is correct. It is laid down in some cases, notably in Morton v. Tibbett, 15 Q. B. 428. But it is claimed the correct statement of the law is that where receipt and acceptance of part of the goods is relied on to make the contract valid, the acceptance of such part must be the ultimate acceptance of that part as a part performance of the contract for sale, leaving no right in the buyer to subsequently reject the part so sccepted, or to claim that it is not in accordance with the agreement, though he may not, by such acceptance, be precluded from questioning the quality or quantity of the residue. If this view be right the court below was inaccurate in its statement of the rule. But the only way in which such inaccuracy could prejudice the defendant was by creating on the minds of the jury the impression that defendant's receipt of the wheat, for the purpose only of cleaning and examining it to ascertain if it was in accordance with representations made by plaintiff, might be an acceptance within the intent of the statute.

The other portions of the charge, stating more specifically the...