Williams-Hayward Shoe Company v. Brooks

• Decision Date: 04 April 1901
• Parties: WILLIAMS-HAYWARD SHOE COMPANY v. BROOKS, ET AL
• Court: Wyoming Supreme Court

64 P. 342

9 Wyo. 424

WILLIAMS-HAYWARD SHOE COMPANY v. BROOKS, ET AL

Supreme Court of Wyoming

April 4, 1901

ERROR to the District Court, Sheridan County, HON. JOSEPH L STOTTS, Judge.

Action for the recovery of the price of goods alleged to have been sold and delivered to the defendants. On the trial the defendants objected to the proof by parol of the contract on the ground that the contract was within the statute of frauds, and that there was no note or memorandum signed by the party to be charged. Certain testimony was excluded which was offered to show that the contract was for the manufacture of goods, and therefore not within the statute. Judgment was for the defendants. Plaintiff prosecutes error. The facts are stated in the opinion.

Affirmed.

Appelget & Mullen, for plaintiff in error.

Findings of fact must be made upon the issues made by the pleadings and every finding not so founded is a nullity. (Newby v Myers, 24 P. 971; Dalton v. Rentaria, 15 id., 37; Goldsmith v. Elwar, 50 id., 867; Maynard v. Locomotive, 47 id., 1030; Fiske v. Casey, 36 id., 668.) To give a defendant a right to a new defense under an amendment to the answer, made after the evidence is in, he should show affirmatively that he did not know of the defense before. (Halleck v. Bresnahen, 3 Wyo. , 73; Gilland v. U. P. Ry. Co., 6 Wyo., 185; Neimick v. Am. Ins. Co., 40 Pac. (Mont.), 597. The evidence offered and excluded would have shown the goods were specially manufactured, and that therefore, the contract was not within the statute of frauds. Where goods are manufactured upon a special order, though the order be a verbal one, and for a price exceeding $ 50, it is not within the statute. (Brown v. Widmer, 32 L. R. A., 593; Higgins v. Murray, 73 N.Y. 52; Baker v. Schenck, 28 Barb., 38; Bonnel v. Hearne, 12 Daly, 236; Abbott v. Gilchrist, 36 Me. 260; Crookshanks v. Burrell, 9 Am. Dec., 187; Spencer v. Cone, 42 Mass. 283; Allen v. Jarvis, 20 Conn. 28; Phipps v. McFarlane 74 Am. Dec., 743; Hintz v. Burkhard, 43 P. 866; Puget Sound, etc., v. Rigby, 43, id., 38; Shawn v. Van Nest, 25 O. St., 494.) The delivery to the carrier was a sufficient delivery to take the case out of the statute. (Meyers v. McMahon, 50 Mo. App., 18; Toms v. Whitmore, 6 Wyo., 220; Bank v. McAndrews, 5 Pac., 879; Hayne v. Porter, 3 Hill, 141; Falvey v. Richmond, 87 Ga. 99; Kessler v. Smith, 42 Minn. 494; Whitman v. Strand, 36 P. 682. Wheelhouser v. Parr, 141 Mass. 593; Myers v. Collie, 56 N.W. , 417.) Unreasonable delay in rejecting the goods is to be treated as an acceptance. (Spencer v. Hale, 30 Vt. 315.)

W. S. Metz, and Clark & Breckons, for defendants in error.

The making of the contract of sale having been denied by the defendants' answer, it was not necessary that they should plead the statute of frauds specially in order that it might be relied on as a defense, but they could take advantage of it by objecting to parol evidence offered by the plaintiff to prove the contract. (Birchell v. Neaster, 36 O. St., 331; May v. Rice, 101 U.S. 231; Dunphy v. Ryan, 116 id., 491; Ontario Bank v. Root, 3 Paige Ch., 478; Popp v. Swanke, 68 Wis. 368; Brandus v. Newstadtl, 13 id., 158.) The petition is not one for work and labor, and the evidence offered to prove the manufacture of the goods was inadmissible for that reason. But the transaction was a contract for the sale of goods, and as such was within the statute. (Pratt v. Miller, 109 Mo. 78; Meincke v. Falk, 55 Wis. 427; Mixer v. Howarth, 21 Pick., 205; Goddard v. Binney, 115 Mass. 450; Cooke v. Millard, 65 N.Y. 352; Lamb v. Crafts, 12 Metc., 353; Ency. L., Vol. 8, 1st. ed., 705-709; Flynn v. Dougherty, 14 L. R. A., 230, note; Pitkin v. Noyes, 48 N. H., 294; 2 Am. R., 218.) To take a case out of the statute, both acceptance and actual receipt of goods are necessary. A delivery to a common carrier does not constitute an actual receipt or an acceptance by the buyer. (8 Ency. L., 1st. ed., 730-735; Rogers v. Phillips, 40 N.Y. 579; Billin v. Henkel, 9 Colo., 394; Johnson v. Cuttle, 105 Mass. 447; Simmons Hd. Co. v. Mullen, 33 Minn. 195.

POTTER, CHIEF JUSTICE. CORN, J., and KNIGHT, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

This was an action for the recovery of a balance due for goods alleged to have been sold and delivered to defendants by plaintiff. The defendants sued were Lyman H. Brooks, John H. Ivey, and Ida Ivey, partners under the firm name and style of J. H. Ivey & Co. The petition alleges that between August 20, 1897, and April 25, 1898, at the special instance and request of defendants, the plaintiff sold and delivered to them goods, wares, and merchandise, in the ordinary course of business, of the value and agreed price of $ 1,068.51, and that, by reason thereof, the defendants became indebted, and promised to pay to plaintiff the said sum; and that of said amount, the sum of $ 558.99 remains unpaid. An account is annexed to the petition, embracing the various items of the alleged sales, and showing a charge as of April 25, 1898, amounting to $ 556.11, which is the sole matter in controversy, every other item in the bill apparently having been paid. The order relied on as the basis of that charge, as appears by the evidence, is claimed to have been given in November, 1897, and the goods were to be shipped in March, 1898.

Lyman H. Brooks, Ida Ivey, and the firm of J. H. Ivey & Company, filed separate answers. Brooks and Ida Ivey each denied membership in the firm, and denied having, at any time, purchased any of the goods mentioned in the petition, and having, at any time whatever, any business transactions with the plaintiff. The answer of the firm also denied that either Lyman H. Brooks or Ida Ivey were members of the partnership. As a second defense, it was alleged that all business transactions between the plaintiff and said firm had been fully settled, adjusted, and completed, and that the defendant was not indebted to the plaintiff upon its alleged cause of action, or any part thereof. For a third defense, it was averred as follows:

"This defendant further alleges that it has never purchased or received any goods, wares, or merchandise from said plaintiff (a corporation) since the first day of October, A. D., 1897, and it denies that the said plaintiff ever sold or delivered to this defendant any goods, wares, or merchandise since said date, and it denies that it ever purchased from said plaintiff any of said goods mentioned in said petition since said date, and it denies that it ever purchased or agreed to pay to said plaintiff for any of said alleged goods."

As disclosed by the testimony, plaintiff, a corporation, is engaged in the wholesale boot and shoe business at Omaha, Nebraska. On or about November 1, 1897, a traveling salesman of the plaintiff visited Sheridan, where the defendant firm conducted a mercantile business, and solicited their order. The salesman testified that Mr. J. H Ivey went with him to the hotel, examined his samples, and gave him an order for goods which he, the salesman, put down upon a written statement or memorandum describing the various items, with the price opposite each item. When the statement or order was offered in evidence, the defendants made the following objection: "Defendants object to the admission of Exhibit 'A,' for the reason that the contract is within the statute of frauds; that the same is a verbal statement, not signed by the defendants, or either of them, and in no way can bind them, and is void; and for the further reason that it is incompetent, irrelevant, and immaterial." The total amount of the order was $ 789.20, and the statement thereof so offered in evidence was not signed by either of the defendants. No other writing or memorandum in writing showing the order or contract for the sale was produced. In the following April the plaintiff shipped the goods by rail to the defendants; but the latter refused to receive or accept them, and, in fact, did not take the goods from the depot, and never did accept them. Indeed, upon the trial it was admitted "that the goods are at the depot, and that the firm of J. H. Ivey & Co. refused to receive them from the depot, and never have received the goods from the station at Sheridan, and have never accepted them, and have paid no part of the purchase price."

The court found that neither Lyman H. Brooks nor Ida Ivey were members of the firm of J. H. Ivey & Co., but that said Brooks had so held himself out as such a member as to be liable to creditors. The court further found among other things that the defendants had not received or accepted the goods, nor paid any part of the purchase price thereof; that no written contract of sale or purchase or note or memorandum thereof had been made or executed by the defendants or either of them. Thereupon the law was found to be with the defendants, and judgment was rendered accordingly, and against the plaintiff for costs. A motion for new trial having been filed, it came on for argument, at which time, at the request of defendants, they were permitted "to amend their answer by adding thereto the defense of the statute of frauds in accordance with the facts proved" which was thereupon done, and the motion for new trial overruled. An exception was duly preserved to the ruling permitting the answer to be amended, and to the overruling of the motion for new trial.

It is contended on behalf of plaintiff in error that the finding of the court relating to the making of the contract was without the issues in the case, as the statute of frauds had not been pleaded; and that it was error to allow an amendment after judgment and after motion for new trial had been filed, for the reason that the facts upon which the amendment was based were within the knowledge of defendants during...