Fergus County Hardware Co. v. Crowley

188 P. 374 | Mont. | 1920

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

The complaint in this action charges that between May 26 and October 30, 1913, plaintiff sold and delivered to the defendant at his special instance and request certain goods, wares and merchandise of the value of $515.77, no part of which sum has been paid except $100 in cash; that defendant is entitled to credit for the further sum of $64 for goods returned, and that there remains unpaid a balance of $361.77. The answer is a general denial. The trial of the cause resulted in a verdict for plaintiff, and from the judgment entered thereon and from an order denying a new trial, defendant appealed.

The evidence on behalf of the plaintiff is to the effect that [1] C. E. Pentecost, the son-in-law of the defendant, had previously purchased goods from plaintiff upon credit; that he had failed to meet his obligations, and had executed and delivered to plaintiff certain worthless checks; that early in May, 1913, he was engaged upon work in the prosecution of which he required immediately certain goods (gasoline and oil), and ordered them from the plaintiff, but, because of the facts stated, they were not delivered, and plaintiff refused to sell to him further upon credit; that defendant came to plaintiff’s place of business to inquire the reason the goods had not been delivered, and was informed; that thereupon he said, “Send this stuff out there, and I will pay for it”; that later Pentecost sent to plaintiff another order for goods, which plaintiff refused to fill until defendant could be notified, and, when notified, he said, “Get the stuff out there, whatever the boys want, and I will pay for it”; that the goods were shipped to Pentecost and charged upon plaintiff’s books to Pentecost; that bills were sent to Pentecost, and that Pentecost paid $100 on account, but that credit was extended solely to defendant, Crowley.

It was peculiarly the province of the jury to pass upon the credibility of plaintiff’s witnesses, and the general verdict is in effect a finding that their version of the transaction is the correct one. With these facts found, there cannot be any question that Crowley’s obligation was an original one not affected by [2] the statute of frauds. While it will be conceded that the facts that the goods were charged to Pentecost, that bills for them were rendered to him and partial payment received from him, tend strongly to indicate that the sale was made to him, still neither any one of the facts is, nor all of them are, conclusive against the plaintiff. They may be explained, and if the jury was satisfied, as it apparently was, that the sale was made altogether upon the credit of Crowley without any intention of resorting to Pentecost for payment, the recovery is warranted. (25 R. C. L. 491, 492.) This entire subject has been covered so fully by this court in McGowan Com. Co. v. Midland C. & L. Co., 41 Mont. 211, 108 Pac. 655, Fortman v. Leggerini, 51 Mont. 238, 152 Pac. 33, and Breidenbach Bros. v. Upper Valley Orchards Co., ante, p. 247, 187 Pac. 1008, that further citation of authorities is unnecessary.

It is contended that there is a fatal variance between the [3] pleadings and proof, in that the complaint alleges a delivery to Crowley, and the evidence discloses a delivery to Pentecost. The evidence, however, goes no further than to indicate that the goods were shipped to Pentecost by direction of defendant, and it is too well settled to be open to question that delivery of goods to one designated by the buyer to receive them is delivery to the buyer himself. (Wing v. Clark, 24 Me. 366; Blumenthal v. Greenberg, 130 Cal. 384, 62 Pac. 599; 35 Cyc. 189; 24 R. C. L. 40.)

No error appearing in the record, the judgment and order are affirmed.

Affirmed.

Mr. Chief Justice Beantly and Associate Justices Hurly, Matthews and Cooper concur.