Starkey v. Galloway

• Citation: 84 N.E.2d 731,119 Ind.App. 287
• Decision Date: 25 March 1949
• Docket Number: 17822.
• Parties: STARKEY et al. v. GALLOWAY et al.
• Court: Court of Appeals of Indiana

84 N.E.2d 731

119 Ind.App. 287

STARKEY et al. v. GALLOWAY et al.

No. 17822.

Appellate Court of Indiana, in Banc.

March 25, 1949

Appeal from Montgomery Circuit Court; Howard A. Sommer Judge.

Wallace & Wallace and Carl F. Henthorn, all of Covington, and Foley, Foley & Burroughs, of Crawfordsville, for appellants.

Walter W. Spencer, of Crawfordsville, and Edward L. McCabe, of Williamsport, for appellees.

DRAPER Judge.

The appellants brought this action against the appellees to recover damages for the alleged conversion of 45 head of white-faced Hereford steers. Being denied a recovery, the appellants filed their motion for new trial which asserts only that the decision of the trial court is contrary to law. They appeal from the overruling of that motion.

The evidence discloses that on October 9, 1946, the appellees who are brother and sister, were the owners of 45 head of steers which they had and kept on their farm. The appellants were partners engaged in buying and selling livestock, and on that day, following some previous negotiations as to price, the appellant Starkey went to the farm and agreed with the appellee Courtland P. Galloway to buy the cattle at 20 cents per pound. Starkey had with him a written contract covering the sale and a check for $1000 to apply on the purchase price. Galloway told Starkey he (Galloway) did not need to sign the contract because his word was 'as good as gold'. Galloway also refused the check, saying he already had other uncashed checks on hand. Galloway told Starkey he had some corn he wanted to feed to the cattle as he had nothing else on the place to feed it to, but he would bring the cattle in as soon as the corn was fed up. He said he would bring the cattle whether the price went up or down. Starkey said 'That's a deal.' Galloway said 'They are your cattle. I'll bring those cattle in as soon as that corn is gone.' They shook hands and Starkey said 'That's good enough for me. It's a deal. They are my cattle.' Galloway said 'They are your cattle. You have nothing to worry about.' The sister was present and heard this conversation.

On October 15, 1946, the OPA ceiling price on steers was discontinued, with consequent increase in the selling price of steers. A few days later appellants asked Galloway when he would bring in the cattle and Galloway said he would not bring them--he had changed his mind and had backed out. On November 20, 1946, appellees sold the steers in Chicago for 32 cents per pound.

By this action the appellants seek to recover the net amount received by the appellees for the steers, less their value at 20 cents per pound.

There having been no note or memorandum in writing and nothing given to bind the contract, or in part payment, the agreement of the parties is unenforcible by action unless the buyer accepted all or part of the property and actually received the same. Burns 1943 Repl., § 58-104.

The steers remained at all times in the custody of the appellees, but that fact is not necessarily inconsistent with a receipt of the property by the purchaser. We think the better and generally accepted rule to be that a symbolical or constructive delivery and a constructive receipt or acceptance will satisfy the statute in a proper case, but we fail to find the presence of any such in this evidence. Receipt involves delivery. Delivery cannot be accomplished by words alone, nor can receipt be shown by words alone, especially where such words are merely a part of the agreement itself, and are spoken during or before the making of the contract of sale, as was the case here. Shindler v. Houston, 1848, 1 N.Y. 261, 49 Am.Dec. 316; Dehority v. Paxson et al., 1884, 97 Ind. 253; Devine v. Warner, 1903, 75 Conn. 375, 53 A. 782, 96 Am.St.Rep. 211; 49 Am.Jur. p. 590, § 275. We realize that Shindler v. Houston, supra, has been criticized. Nevertheless, it has been approved and adopted by our Supreme Court, and we follow it both because we are required to and because we believe it to be sound.

To avoid the rule just stated, the appellants insist the act of shaking hands was an unequivocal act or symbol, over and beyond the making of the agreement itself, which indicated the relinquishment of dominion over the property by appellees and the assumption thereof by appellants. But the handshaking was merely a gesture--an unspoken part of the agreement itself. It did not operate to presently place the property within the power and under the exclusive dominion of the buyer. It was an unspoken promise, on honor, to carry out and perform the terms of the agreement, including delivery at a later date. It was not delivery.

The appellants say 'The act of the buyer, assented to by the seller as bailee, in giving the bailee instructions to keep the cattle, feed certain corn to them and bring them to buyer during a certain...