Weeks v. Crie

• Decision Date: 19 December 1900
• Citation: 48 A. 107,94 Me. 458
• Parties: WEEKS v. CRIE et al.
• Court: Maine Supreme Court

48 A. 107

94 Me. 458

WEEKS

v. CRIE et al.

Supreme Judicial Court of Maine.

Dec. 19, 1900.

(Official.)

Exceptions from supreme judicial court, Knox county.

Action by Charles E. Weeks against Rufus P. Crie and others. Verdict for plaintiff, and defendants except. Exceptions overruled.

Assumpsit to recover damages for nondelivery of a quantity of fish, which the plaintiff alleged he purchased of the defendants under an oral contract. The defendants denied the contract, and invoked the statute of frauds.

The verdict was for plaintiff, and damages assessed at $128.70.

At the trial the plaintiff claimed, and introduced evidence tending to prove, that on the 1st day of November, 1898, the defendants orally agreed to sell him from three to five hundred drums of hake at $1.65 per kentle, to be delivered at Rockland when called for by him, and at the same interview agreed to sell him ten barrels of split herring at $4.25 per barrel, to be delivered in Rockland by next boat from Criehaven, which would be within one week; that he (the plaintiff) orally agreed with the defendants to purchase said hake and herring on said terms; that the herring were delivered according to the agreement, and paid for by the plaintiff; that on the 20th day of January, 1899, the plaintiff requested the defendants to deliver him three hundred drums of hake in accordance with the alleged agreement; and that the defendants refused to deliver them to him. The defendants denied that they agreed to sell the plaintiff any hake, but admitted that they did sell the plaintiff the ten barrels of herring which were delivered according to agreement.

There was no evidence showing or tending to show that the alleged contract was in writing, or that any memorandum thereof was signed by the defendants, or that anything was paid in earnest to bind the bargain, or that any part of the hake were delivered; and the defendants claimed that, if a verbal agreement for the sale of the hake was made, it was void under the statute of frauds.

The presiding justice, among other things, Instructed the jury as follows:

"And so I instruct you that if the contract for the hake and the contract for the herring were made at the same Interview, even if the contract for the hake was finished and concluded before the contract for the herring was made, that, even under those circumstances, the delivery of the herring would take the contract for the sale of the hake out of the statute of frauds. It would be a part delivery, so that the statute of frauds would not apply. I so instruct you pro forma, for the purposes of this trial, in order that you may reach and pass upon the question of fact between the parties.

"And I instruct you further, for the purposes of this trial, that if the defendant agreed to sell the hake in controversy here to the plaintiff, and the plaintiff agreed to purchase them,—if their minds concurred in making such a contract,—the plaintiff would be entitled to recover, regardless of the statute of frauds. If I am wrong in this law, of course, as I said before, there is a way open to have the error rectified."

To which instructions of the presiding justice to the jury the defendants, by their counsel, then and there, before the jury retired, excepted, and were allowed their exceptions.

The charge of the presiding justice was made a part of the exceptions.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

J. E. Moore, for plaintiff.

R. F. & J. R. Dunton, for defendants.

SAVAGE, J. At the trial of this case the plaintiff claimed, and introduced evidence tending to show, that the defendants in November, 1898, orally agreed to sell him from three to five hundred drums of hake at $1.65 per kentle, to be delivered at Rockland when called for by him, and at the same interview agreed to sell him ten barrels of split herring at $4.25 per barrel, to be delivered in Rockland by next boat from Criehaven, which would be within one week; that he (the plaintiff) orally agreed with the defendants to purchase the hake and the herring upon these terms. It was admitted by the defendants that they sold the herring to the plaintiff as claimed, and that they were delivered according to the agreement, and paid for by the plaintiff. The plaintiff in January, 1899, demanded 300 drums of hake to be delivered in accordance with the alleged agreement, but the defendants refused to deliver them; and to recover damages for that alleged breach of contract this action was brought.

The defendants denied that they agreed to sell any hake to the plaintiff. But the jury, under instructions to which no exceptions were taken, have found they did make such a contract. In this contingency the defendants claim that, if any such contract of sale was made, it was oral merely, and, being for more than $30, it was invalid under the statute of frauds. The case shows that no memorandum was made, and nothing was given in earnest to bind the bargain; and the defendants claim that no part of the goods sold were accepted and received by the purchaser, so as to bind the defendants to deliver the hake. This last proposition is controverted by the plaintiff, and hereon, as will be seen, the case hinges.

The presiding justice, among other things, instructed the jury that "if the contract for the hake and the contract for the herring were made at the same interview, even if the contract for the hake was finished and concluded before the contract for the herring was made, that even under those circumstances the delivery of the herring would take the sale of the hake out of the statute of frauds," and, further, that "if the defendants agreed to sell the hake in controversy here to the plaintiff, and the plaintiff agreed to purchase them,—if their minds concurred in making such a contract,—the plaintiff would be entitled to recover, regardless of the statute of frauds."

To these instructions the defendants have excepted. It will be observed that the presiding justice in both instructions, virtually withdrew from the jury the consideration of any facts upon...