77 N.W. 612 | N.D. | 1898
This action was tried to a jury,.and resulted in a verdict for the plaintiffs. A motion to vacate the verdict and for a new trial was made, and was based upon affidavits setting out newly-discovered evidence, and upon a statement of the case settled
The plaintiffs, at all times in question, were manufacturers of brick at Grand Forks, N. D.; and this action is brought to recover for a quantity of brick which, it is conceded, were, in the summer and fall of 1892, shipped on the cars by plaintiffs, at Grand Forks, to Neche, N. D., and were received at Neche, and there placed in a certain bank building, which building was the property of the Bank of Neche. Defendant, at the time in question, was one of the directors of said bank. It is undisputed that said Bank of Neche entered into a written contract with one D. K. Osbourne, then residing at St. Paul, Minn., whereby the latter agreed to furnish all the material and labor and build said bank building for a stipulated contract price; and that, pursuant thereto, said Osbourne, in the summer and fall of 1892, did build and complete said building under the said contract. The contract between the Bank of Neche and Osbourne was entered into at St. Paul, on the 12th day of April, 1892. It appears that about May 1, 1892, the defend
The instructions of the trial court to the jury, so far as the same are at all material, were as follows: “Gentlemen of the jury, the issue, and practically the only issue, in the case, is the question as to whether there was a contract entered into between these parties at the time they met, in April or May, 1892.” Here followed certain instructions and explanations to the jury concerning the statute of frauds, as applied to sales of personal property, and, after giving which, the Court proceeded to charge the jury as follows: ' “In this action, gentlemen of the jury, the contract, being for more than the sum of $50, comes under the provisions of that statute; and the plaintiffs allege that they are entitled to recover of the defendant by reason of the fact that the buyer,■ — that is, they claim that Mr. Johnson accepted and received part of the things sold; that is, that he accepted and received the brick which they claim they sold to him. Now, if you find, gentlemen of the jury, by a fair preponderance of the evidence in this case, * * * that the plaintiffs and defendant entered into a contract at the time testified to, whereby the plaintiffs agreed to sell and deliver to Mr. Johnson, and Mr. Johnson agreed to purchase and to accept from the plaintiffs, the brick necessary to the construction of the building at Neche at the agreed price of seven dollars per thousand, then it is your duty to return a verdict for the plaintiffs. On the other hand, if you find the contract to be as set out by the defendant, or the conversation at the time was as detailed by the defendant, and that there was no agreement to pay on the part of Mr. Johnson, or to
Defendant’s counsel excepts to various features of these instructions, and particularly to the following language: “Gentlemen of the jury, the issue, and practically the only issue, in the case, is the question as to whether there was a contract entered into between these parties at the time they met, in April or May, 1892.” In effect, the jury, by this part of the charge (and it was not modified), were told that there was practically but one question of fact for them to consider, namely, whether the alleged contract of sale was ever made. It is our opinion that this was error, and, further, that the error is one of misdirection, and is not one of mere nondirection. The sole question submitted to the jury was, it is true, a fundamental question'of fact; but, manifestly, it could not be the only question of fact for the jury, unless the jury found, as they did not, that the contract alleged was never made. If the jury had found that the contract of sale had never been made, then, and in that event only, would the one question submitted to the jury have been decisive of the case. The complaint alleged, not only a contract for the sale to defendant of a quantity of brick at a stipulated price, but further alleged performance on plaintiffs’ part by a • delivery of the brick to defendant. These averments were in issue, and, as we have seen, the delivery of the brick to the defendant, and their receipt and acceptance by defendant, were facts directly controverted by the evidence. The delivery of the brick on the cars by the plaintiffs was established by the undisputed evidence, and "the fact that the same brick were laid in the walls of the bank building by Osbourne or his employes is also conceded; but, as we have seen, the fact of defendant’s receipt and acceptance of the brick so delivered on the cars is not conceded by the defendant, but is, on the contrary, denied in the defendant’s answer, and disputed in defendant’.s testimony.
It is manifest that the trial court’s theory of the case was that inasmuch as the delivery on the cars was undisputed, and that the same brick were used in the building, the question of defendant’s receipt and acceptance of the brick was eliminated from the case. And this, perhaps, would be a correct view in a simple common-law contract; but this view is erroneous in the case at bar. The contract in question falls within the statute of frauds, and there having been no memorandum in writing evidencing the terms of the contract, and no money paid on the same, the plaintiffs had the burden of showing an actual and voluntary receipt and acceptance of the goods by the buyer. In such cases the original oral contract, within the statute, does not alone pass title; nor does the title to goods pass, until the unconditional receipt and acceptance of the goods. Such receipt and acceptance, when voluntar}» and unconditional, relate back to, and validate, the oral contract of sale. This contract in the case at bar is within the statute governing sales of personalty for a price exceeding $50 (Rev. Codes, § 3958), and the
We think, too, that the order granting a new trial should be affirmed upon the further ground of the insufficiency of the evidence to justify the verdict. There is perhaps some evidence in the record tending, unless explained, to show a receipt of the goods; but we fail to find any evidence whatever in this record of an absolute voluntary acceptance of the brick by the defendant. Where a verdict is vacated, and a new trial granted by a trial court, upon the ground of insufficient evidence, the Court, in so doing, is acting within judicial discretion, and such discretion will not be disturbed in a court of review except in cases of manifest abuse. See Patch v. Railway Co., 5 N. D. 55, 63 N. W. Rep. 207; Gull River Lumber Co. v.