40 Minn. 141 | Minn. | 1889
This action is for the recovery of the price (more than $50) of a large quantity of potatoes, alleged to have been sold by the plaintiffs to the defendants at an agreed price. The answer denied the sale. The court, trying the cause without a jury, found
The mere oral agreement was void, under the statute, and the denial of the sale in the answer was sufficient to enable the defendants to avail themselves of that defence. Tatge v. Tatge, 34 Minn. 272, (25 N. W. Rep. 596, and 26 N. W. Rep. 121.) The case justified the finding of the court that there had been no acceptance on the part of the defendants satisfying the requirement of the statute. The circumstances to which attention should be directed in this connection are shown to have been as follows: The agreement was made orally, at Crookston, between the plaintiffs and one Storms, an agent of the defendants. The agreement was for the sale of a car-load of potatoes, at 45 cents a bushel, delivered on the track at Crookston, billed to the defendants at Minneapolis. The plaintiffs were authorized to draw on the defendants for the price when the potatoes were shipped. The potatoes were shipped by rail a few days after the agreement. When the car reached Minneapolis the defendants found the potatoes badly frozen. Thereupon the defendants telegraphed to the plaintiffs, informing them of that fact, and asking: “Shall we put in cellar for you ?” The plaintiff responded by telegraph: “Handle to best advantage; cost forty here.” The defendants then put the potatoes in a warehouse, picked them over, and sold them. After a part of them had been sold the defendants remitted what had been received for them to the plaintiffs, with a letter indicating that they were thus dealing with the potatoes, not as purchasers, but for the benefit of the plaintiffs.
“Unless the buyer accepts and receives” is the language of our statute of frauds, specifying cases excepted from its operation. The acceptance which, under the statute, is effectual to bind the purchaser, is distinguishable from a mere receipt of goods delivered, although the latter might be sufficient to transfer the title, in case there were a valid contract. In the case of an ageeement void by force of the statute, an effectual acceptance can be inferred only from some act or course of conduct on the part of the buyer manifesting a present intention to receive the goods in performance of the agreement, and to appropriate them as his own. It implies on
But in this case it cannot be taken as a fact that the defendants did appoint the carrier to whom the potatoes were to be delivered, although the appellants claim that such was the necessary result of the agreement to deliver on the track at Crookston; because, as they say, there was but one railroad line there. But this is not shown in the case to be the fact. In any view of this case, the receiving of the property by the railroad company for transportation was no act of
Several of the appellants’ assignments of error are based upon the theory which we have considered above, and deem untenable, — that is, that a valid contract of sale, prior to the arrival of the car at Minneapolis, was shown. The condition of the potatoes when they reached Minneapolis, the defendants’ communications to the plaintiffs respecting the same, and the manner in which they were disposed of, were properly received as a part of the res gesta, affecting the question of acceptance. Caulkins v. Hellman, supra. In connection with these facts indicative of non-acceptance, there was no error in receiving the testimony of one of the defendants stating directly that they did not accept the potatoes as their property. Berkey v. Judd, 22 Minn. 287; Garrett v. Mannheimer, 24 Minn. 193.
Order affirmed.