123 Cal. 548 | Cal. | 1899
Appeal from judgment, with bill of exceptions. Appeal taken within sixty days after rendition of judgment. Action brought to recover the price of one hundred and eighty cords of wood at one dollar and seventy-five cents per cord. Defense, that there was no contract in writing and no receipt and acceptance of the wood.
The cases, under the clause of the statute of frauds which our code section has reproduced, hold that, in order to supply the place of a writing, acceptance and receipt are necessary to show the complete consent of the vendee to the existence of the contract. Acceptance and receipt are both necessary. “The acceptance must be clear and unequivocal.” (Benjamin on Sales, sec. 144, where cases are collected.) In this case, the facts which are without controversy are not sufficient to constitute acceptance and receipt. The well-established facts are that in the fall of 1895 Isaac and Alex. Mosely, the assignors of plaintiff, agreed with A. M. George, as manager of the respondent, to sell the wood and deliver it on the lands of respondent, to be measured and paid for after the respondent had consumed one hundred cords of wood previously purchased from one Mies, and then on hand. The manager of the respondent was to receive and measure the wood. The wood was cut and delivered on the lands of the respondent some time before the respondent was ready to receive it, the Mies wood being still unconsumed. All that tends to show acceptance by the respondent is the fact that the respondent used about five and a half cords of the wood. There was an effort on the part of the respondent to show that this was done by mistake, the manager supposing the wood consumed to be part of a lot which had been purchased from one Olmstead. But the record of the testimony is evidently very imperfect; and there is nothing to show clearly that fact. Upon the facts shown there is nothing to explain in one way or the other the use by the respondent of the five cords of the wood; and that must remain as a fact in favor of the appellant tending to show acceptance. It cannot, however, have much significance in that direction, because there is no proof that the wood was measured by the manager with a view to ac
There is not affirmative proof on the part of the appellant sufficient to overcome the adverse finding of the court.
The appellant claims error at the trial in admitting the testimony of Olmstead and Cutler in reference to the purchase by Olmstead of twenty-nine cords of wood from the Mosely brothers, and his sale of that wood to the defendant. The evidence was offered with a view to establish the alleged mistake
I advise that the judgment be affirmed.
Britt, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the judgment is affirmed. Temple, J., McFarland, J., Henshaw, J.