Smiley v. Barker

Citation83 F. 684
Decision Date22 November 1897
Docket Number913.
PartiesSMILEY v. BARKER.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

This writ of error challenges a judgment for the recovery of part of the purchase price paid by Samuel M. Barker, the defendant in error, to Robert A. Smiley, the plaintiff in error, for 6,000 sheep, none of which were ever delivered. Barker alleged in his complaint that on November 21, 1892, he paid $1,000 to Smiley, and promised to pay him $28,500 on the delivery of 6,000 sheep, and that Smiley made a written contract with him to deliver the sheep to him at Medicine Bow, in the state of Wyoming, on May 1, 1893; that on May 31 1893, he paid $5,000 on this contract, and he and Smiley made another written agreement, to the effect that the balance of the money should be paid when the sheep were delivered, about November 1, 1893, that Barker should pay $750 interest and all the expense of shearing and herding the sheep meanwhile not exceeding $100 per month, and that Smiley should sell the wool, and apply its proceeds in payment of the purchase price on the contract; that on October 25, 1893, Smiley agreed to ship 3,000 of the sheep to Chicago by way of Silver Creek, in the state of Nebraska, where Barker was, and where he had a suitable place to feed the sheep, to deliver these sheep to him at Silver Creek if he was then able to pay $10,000 on the contract, and to keep the remaining 3,000 sheep for him until May 1, 1894, when Barker was to pay the unpaid balance owing upon the agreement; that he raised the $10,000, and had it ready to pay about November 1, 1893, but that Smiley sold the 3,000 sheep to a stranger before that date, kept the $3,000 paid to him as part of the purpose price, and failed to deliver any of the sheep. He sued for and prayed to recover the $6,000 as money had and received by Smiley to his use. The plaintiff in error answered. In his answer he admitted the execution of the contracts of November 21, 1892, and May 31, 1893, and the payment of the $6,000, but he denied the agreement of October 25, 1893, and averred that that agreement was to the effect that the defendant in error should pay $10,000 to him at Rawlins, in the state of Wyoming, on or before October 27, 1893, and that thereupon he should deliver the 3,000 sheep to him at Medicine Bow, and should keep the remainder until the 1st of May, 1894, when they should be delivered, and the unpaid balance of the purchase price should be paid. He alleged that Barker failed to pay the $10,000 as he agreed, and thereby violated his contract, and he claimed $11,000 for his breach of it. The court tried the case, without a jury, and filed special findings of fact and conclusions of law. The material facts which it found were these: The three contracts alleged by the defendant in error in his complaint were made, but the last one was not in writing. Before this last contract was made the plaintiff in error wrote to Barker, and proposed that he should take but 3,000 instead of 6,000 sheep about November 1, 1893. About October 22, 1893, the plaintiff in error went to Silver Creek, Neb., where he found Barker, and made the oral agreement with him to ship the 3,000 sheep about November 1, 1893, to Chicago, to feed them in transit at Silver Creek, Neb., to accept $10,000 when they arrived there, and to deliver them to Barker, and to extend the time for the delivery of and the payment for the remaining 3,000 sheep until May 1, 1894, if the $10,000 was paid. Barker agreed to secure the $10,000 if possible. He did secure it, and had it on hand, ready to pay over, on November 1, 1893, at Silver Creek, where he was awaiting the arrival and delivery of the 3,000 sheep. Before the October agreement was made, he had sent 18 cars to Medicine Bow for the purpose of transporting the sheep East. After the October contract was made, the plaintiff in error requested him, by letter, to turn these cars over to him, so that the could use them to ship the 3,000 sheep to Chicago; and Barker sent a written order for the cars, with detailed instructions for shipping the sheep, which Smiley received on November 1, 1893. On that day he sold and delivered 2,750 of the sheep to a stranger, without any notice to the defendant in error, who first learned of this fact on November 4, 1893. The court found as conclusions of law that the plaintiff in error waived the defense of the statute of frauds by his pleading; that the oral agreement of October 22, 1893, was a valid and binding contract; that Smiley had failed to comply with his written contracts as modified by this oral agreement; that he was not entitled to recover upon his counterclaim; and that the defendant in error must have judgment against him for the portion of the purchase price which he had paid, and interest.

Frederick H. Bacon, for plaintiff in error.

T. F. Burke (B. F. Fowler on the brief), for defendant in error.

Before BREWER, Circuit Justice, and SANBORN and THAYER, Circuit Judges.

SANBORN Circuit Judge, after stating the case as above, .

The principal complaint concerning the trial of this case is that the court below admitted evidence of the oral agreement of October, 1893, which tended to modify the written contracts for the sale of the sheep, held that oral agreement valid, and rendered this judgment of $6,000 and interest for its breach, over the repeated objections of the plaintiff in error that this contract was void under the statute of frauds, and without consideration. A careful examination of the record has convinced us, however, that the invalidity of this oral agreement is not necessarily fatal to the judgment, and for these reasons:

1. It is assigned as error that the testimony of Barker and another to the terms of the oral agreement was erroneously received, because that contract fell under the ban of the statute of frauds, and was without consideration. Conceding that parol agreements modifying written contracts that are within the statute of frauds are themselves within that statute, and cannot be enforced (Emerson v. Slater, 22 How. 28, 42, and cases there cited; Swain v. Seamens, 9 Wall. 254, 271), and that the plaintiff in error had not waived this defense by his answer, we are still of the opinion that the court rightfully received this evidence on another ground. On October 1, 1893, the plaintiff in error was bound, under written contracts, to deliver 6,000 sheep to the defendant in error at Medicine Bow, Wyo., and the latter was bound to pay him about $24,000 for them on delivery. Thereupon he wrote to Barker, and suggested to him that he should take only 3,000 instead of 6,000 sheep that year. He then went to Barker's ranch, at Silver Creek, Neb., and told him that he would ship the 3,000 sheep from Medicine Bow Station to Chicago, by way of Silver Creek; that he would stop and feed them there; and that, upon the receipt of the $10,000 when he arrived there, he would deliver these sheep to Barker, and would defer the delivery of the remaining 3,000 and the payment of the unpaid balance under the written contracts until May 1, 1894. Barker assented to this proposition, and proceeded to raise the $10,000. Smiley went to Medicine Bow; and, in order to enable him to ship the 3,000 sheep to Silver Creek, he wrote Barker for an order for the delivery of the 18 cars which he had sent for the transportation of the sheep before the conversation about the delivery of the 3,000 sheep at Silver Creek. Barker relied on these letters and statements of Smiley, and was thereby induced to stay away from Medicine Bow about November 1, 1893, when he would otherwise have been there to accept delivery of the sheep and pay for them, to send him the order for the cars, to raise the $10,000, and to await his arrival at Silver Creek with the sheep.

The statute of frauds may not be used to perpetrate a fraud. One cannot take advantage of his own wrong. One may not so speak and act as to knowingly induce another to change his position, and then avail himself of that change to his prejudice. The letters and statements of Smiley in October lulled Barker into security, and prevented his attendance at Medicine Bow to receive or pay for the sheep on November 1, 1893; and he cannot be permitted to take advantage of this absence, which he himself had induced, to default Barker on his contract, and charge his with damages. The letters and conversation constitute a waiver of the delivery and payment at the time and place named in the written contracts, and, although they did not evidence an enforceable agreement, they were all admissible to establish this waiver.

Bishop, in his work on Contracts, says, at section 792:

'Waiver is where one in possession of any right, whether conferred by law or by contract, and of full knowledge of the material facts, does or forbears the doing of something inconsistent with the existence of the right or of his intention to rely upon it. Thereupon he is said to have waived it, and he is precluded from claiming anything by reason of it afterwards.'

And the supreme court has expressly held that the strict performance of a contract subject to the statute of frauds may be waived by words and acts inconsistent with an intention to require it which have induced the other contracting party to omit it. Swain v....

To continue reading

Request your trial
38 cases
  • United States v. St. Pierre
    • United States
    • U.S. Court of Appeals — Second Circuit
    • December 15, 1942
    ...Cir., 1901, 111 F. 19, 31; Pokegama Sugar Pine Lumber Co. v. Klamata River Lumber & Improvement Co., C.C., 96 F. 34, 54; Smiley v. Barker, 8 Cir., 1897, 83 F. 684, 687. 5 Mason v. United States, 244 U.S. 362, 365, 366, 37 S.Ct. 621, 622, 61 L.Ed. 1198, quoting Cockburn, Ch. J., with 6 See, ......
  • Merriam v. Huselton, 8818.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • December 6, 1930
    ...19 Wall. 65, 69, 22 L. Ed. 47; Martinton v. Fairbanks, 112 U. S. 670, 673, 5 S. Ct. 321, 28 L. Ed. 862; Smiley v. Barker, 83 F. 684, 688, 28 C. C. A. 9, 13, 14, 55 U. S. App. 125, 134; Hoge v. Magnes, 85 F. 355, 358, 29 C. C. A. 564, 567, 56 U. S. App. 500, 505; Insurance Co. of North Ameri......
  • Meyer v. The National Fire Insurance Company of Hartford, Conn., a Corp.
    • United States
    • North Dakota Supreme Court
    • November 14, 1936
    ...162 Mich. 554, 127 N.W. 680, 682; Danville Lumber & Mfg. Co. v. Gallivan Bldg. Co. 177 N.C. 103, 97 S.E. 718, 720; Smiley v. Barker (C.C.A. 8th) 83 F. 684, 687; Marine Iron Works v. Wiess (C.C.A. 5th) 148 F. 153; Jones v. Maria, 48 Cal.App. 171, 191 P. 943, 944; Templer v. Muncie Lodge, I.O......
  • City of Huron v. Second Ward Sav. Bank, 980.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • March 21, 1898
    ...prejudiced the plaintiff in error. Error without prejudice is no ground for reversal. Smiley v. Barker, 55 U.S.App. 125, 28 C.C.A. 9, and 83 F. 684, 687. The trial below was without prejudicial error; the judgment was founded in reason, and sustained by authority; and it must be affirmed. ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT