Smith v. Brennan

• Citation: 28 N.W. 892,62 Mich. 349
• Court: Michigan Supreme Court
• Decision Date: 08 July 1886
• Parties: SMITH v. BRENNAN.

28 N.W. 892

62 Mich. 349

SMITH v. BRENNAN.

Supreme Court of Michigan

July 8, 1886

Error to Wayne.

Griffin & Warner, for plaintiff and appellant.

John C. Donnelly, for defendant.

MORSE J.

This is an action of replevin for a case of goods containing 60 dozen half-hose. The property was shipped by the plaintiff from his store, in Boston, to Thomas Walsh, in Detroit. The goods were sold by the plaintiff to said Walsh on the thirteenth day of September, 1885, at New York city. They were delivered to the Merchants' Despatch, a carrier at Boston, Massachusetts on the fourteenth of the same month, and shipped to Walsh. Walsh died on the seventeenth of September, 1885, before the goods were delivered to him by the carrier. Brennan was appointed administrator of the estate of Walsh, and on the twenty-fourth of September found this case of hosiery in Walsh's store, and apparently a part of the stock belonging to his estate. He took possession of them with the rest of the stock, and proceeded to inventory and appraise them as a part of the assets of the estate. The plaintiff demanded the goods of Brennan, who refused to deliver them upon the demand.

The sale in New York was verbal, and was made by one Fishell, in the employ of plaintiff, to one Hanley, the agent of Walsh and the goods were sold on credit. These persons do not differ materially in their statements of the transaction. Hanley went into plaintiff's store in New York, and looked at and selected a case of hosiery, and made a note of his purchase, to-wit, a memoranda in a book of the number price, and quantity of the goods, and the terms of credit, for his own convenience. There was no memorandum made or signed by him, and given to Fishell, nor was any made by Fishell, and handed to him. Hanley ordered the goods shipped by the Merchants' Despatch, and the next day a case of like number, quality, and quantity of hosiery was shipped from plaintiff's store in Boston to Thomas Walsh, at Detroit.

The plaintiff on the trial introduced the statutes of New York in reference to verbal contracts for the sale of goods, as follows: "Every contract for the sale of any goods, chattels, or things in action, for the price of fifty dollars or more, shall be void, unless (1) a note of memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby; or (2) unless the buyer shall accept and receive part of such goods, or the evidences of some of them of such things in action; or (3) unless the buyer shall, at the time, pay some part of the purchase money."

The value of the goods was admitted to be $195.

The circuit judge ruled that the administrator had accepted the goods, and had the same right to accept them that Walsh would have had if he had been living when they were delivered by the carrier, and directed a verdict for the defendant. A return being waived, the damages of defendant were assessed at $195, and he had judgment for that sum.

At the time of the taking possession and acceptance of the goods he was a special administrator, appointed under the provisions of How.St. � 5851, and with the powers and duties prescribed by section 5852 of the same statutes.

The counsel for plaintiff take the ground that this contract is shown to be within the statute of frauds of the state of New York, where the contract was made, and that, there having been no acceptance of the goods by Walsh, ...