154 Mich. 207 | Mich. | 1908
Lead Opinion
{after stating the facts). The sole controversy in this cases arises from the mill culls. Was there a valid sale of them ? is the only important question. The original contract excluded mill culls, but contemplated that some would be mixed with the lumber. Whatever were so shipped defendant had the right to throw out. Upon notification it would have been the duty of the plaintiff to take thém away. If the mill culls, as the court instructed the jury, were sufficient in quantity to justify the defendant in refusing to accept the lumber, it was his duty to promptly notify the plaintiff. He did not do so, and furnished no legal excuse for the delay. Rut, as the court instructed the jury, this became immaterial, except as it might affect certain expenses to which the defendant claims he was subjected, because it was subsequently agreed that the merchantable lumber contracted for should be separated from the culls, and that defendant was liable only for the merchantable lumber.
Plaintiff claims that a sale of the culls was afterwards made at $9.50 per thousand. This claim is based,— (1) upon defendant’s letter of February 14th, and plaintiff’s letter of the 17th. (2) Upon the proposition made by the defendant to Mr. Ward, the inspector, to pay $9.50 per thousand, by him communicated to .plaintiff, plaintiff’s letter of acceptance of February 17th, and defendant’s retention of the goods without notice until February 22d.
Counsel for defendant insists that his letter dated February 14th referred solely to the two cars mentioned therein, and did not include the culls piled in the defendant’s yard. Plaintiff’s counsel contends that it did include the culls in the yard, and that plaintiff’s letter of February 17th was an acceptance of the offer contained in the letter of the 14th. The court left it to the jury to deter
The court also instructed the jury:
“If you find, however, that this letter of February 14th was not for the mill culls, but that he proposed, and that the proposition accepted by Mr. Godkin was the one that was made to Ward when in the yard, then it would be a completed contract for the sale of those mill culls to Mr. Weber by Mr. Godkin, unless Mr. Weber unreasonably delayed in notifying Mr. Godkin. It was his duty on receipt of the letter to immediately disclose to Mr. Godkin exactly what he, Mr. Weber, considered to be the status of the case; if he did not do it, he would be considered in law as having accepted Mr. Godkin’s offer as binding upon himself. ’
Defendant contends that this was error, and that the alleged oral sale is void under the statute of frauds (3 Comp. Laws, § 9516), because there was no delivery or acceptance within the meaning of the statute. The lumber was in the possession and under the control of the defendant. He had made an oral offer of purchase. The plaintiff wrote an acceptance of the offer. Any further ceremony as to the delivery would have been unnecessary and impracticable.
Mr. Mechem says:
‘ ‘ Where the goods, at the time of the contract of sale, are already in the possession of the purchaser, * * * the nature of the delivery and receipt which will satisfy the statute is necessarily different. It is not necessary that*212 the parties should go through the idle ceremony of returning the property to the seller that he may make a new delivery to the buyer, who is then to receive it anew. * * * Whether the acts show a receipt of this nature is ordinarily a question of fact for the jury, though where the facts are not in dispute the court may determine it. ” 1 Mechem on Sales, § 389.
Where an oral agreement was made for the transfer of 20 hogs mingled with others, and the vendor and vendee went where the hogs were and pointed them out, and the vendor charged the vendee the purchase price on account, the hogs remaining together in the same pasture as before, in the possession and care of the vendor, it was held that there was a sufficient delivery to satisfy the statute of frauds. Webster v. Anderson, 42 Mich. 554.
The rule is thus laid down in 29 Am. & Eng. Enc. Law (2d Ed.), pp. 984, 985:
“A long and unreasonable delay in returning the goods to the seller after they have been delivered to the buyer constitutes strong evidence of acceptance, and it has been said that practically the question resolves itself into whether the buyer, within a reasonable time, has rejected the property; the question whether the buyer has failed to reject the goods within a reasonable time being one for the jury. * * *
“ Where goods are sold to a buyer who is already in possession of them, the question what constitutes the requisite acceptance and receipt of the goods is one with which the courts have had considerable difficulty and have not always been in harmony. Although the facts and circumstances of each particular case are to be considered, it may be stated as a general proposition that the buyer has little more to do, if anything, than to remain in possession and claim under the contract of sale. According to some authorities the law does not require that he should go through the idle ceremony of delivering up possession to the seller and then taking back possession under the contract of sale.” See authorities there cited.
Laymen of average common sense would not consider that it was necessary to go through some ceremony to constitute a delivery and acceptance under such circum
Where goods are delivered under a parol sale, void under the statute of frauds, it is held to be the duty of the purchaser to repudiate immediately. Spencer v. Hale, 30 Vt. 314.
Where logs had been sold and were repurchased, being in possession of the repurchaser, it was held that no written memorandum of resale was necessary. Couillard v. Johnson, 24 Wis. 533.
The court left it to the jury to determine whether the delay from February 17th to the 22d was unreasonable. In this connection it must be borne in mind that in the due course of mail a letter mailed in Detroit would reach the plaintiff in Bay City in a few hours, and that there were other speedier methods of communication.
The other assignments of error are unimportant.
For the error mentioned, the judgment is reversed, and new trial ordered.
Rehearing
ON REHEARING.
A detailed statement of the facts in this case will be found in the former opinion written by Chief Justice Gra'nt, ante, 207. The testimony, stating it most favorably to the plaintiff, may be briefly summarized as follows: On the 16th of February, 1905, there was in defendant’s possession mill culls belonging to plaintiff amounting to 22,957 feet. Defendant made a verbal offer to plaintiff’s agent to purchase these at $9.50 per M. This offer was communicated to plaintiff February 17th. On that day plaintiff wrote defendant, accepting the offer.
(after stating the facts). The important question in this case is this: Has there been a compliance with section 9516, 3 Comp. Laws ? That section reads:
“No contract for the sale of any goods, wares or merchandise, for the price of fifty dollars or more, shall be valid, unless the purchaser shall accept and receive part of the goods sold, or shall give something in earnest, to bind the bargain or in part payment, or unless some note or memorandum in writing of the bargain be made, and signed by the party to be charged thereby or by some person thereunto by him lawfully authorized.”
When this case was first determined by us, we decided that there was in writing nothing to indicate defendant’s assent to the sale. We adhere to that determination for the reason stated in our former opinion; that is, to be specific, we hold that defendant’s letter of February 14th, which it was claimed contained an offer for these culls, referred to other culls, and not to those in controversy. It is urged that the section was complied with because the goods were already in defendant’s possession. We assented to this view on the former hearing. In doing this I think we failed to note — at least, I failed to note— that the statute required acceptance as well as delivery. There is in this case no evidence of acceptance. And to hold that the statute was complied with is to disregard that portion of the statute requiring acceptance. In Duplex Safety Boiler Co. v. McGinness, 64 How. Prac. (N. Y.) 99, it is said (this is quoted from the headnote, but it is correct):
“In order to constitute a delivery and acceptance of goods, something more than words are necessary; and the*215 fact that the goods are already in the defendant’s possession under a prior understanding does not amount to a delivery or acceptance. There must be some affirmative act of his to ta'ke the case out of the statute.”
This is supported by a long line of cases. See Dorsey v. Pike, 50 Hun (N. Y.), 584; Follett Wool Co. v. Deposit Co., 84 App. Div. (N. Y.) 151; Hinchman v. Lincoln, 124 U. S. 88; J. H. Silkman Lumber Co. v. Hunholz, 132 Wis. 610 (11 L. R. A. [N. S.] 1186); Lillywhite v. Devereux, 15 M. & W. 285; Proctor v. Jones, 2 C. & P. 532; Taylor v. Wakefield, 6 El. & Bl. 765.
It is contended that Webster v. Anderson, 42 Mich. 554, Couillard v. Johnson, 24 Wis. 533, 1 Mechem on Sales, § 389, and 29 Am. & Eng. Enc. Law (2d Ed.), p. 985, are opposed to this view of the law. We think otherwise. In Webster v. Anderson and Couillard v. Johnson there was no question about an acceptance. The question of delivery alone was in doubt, and therefore these authorities have no application. It is not to be inferred from 1 Mechem on Sales, § 389, or 29 Am. & Eng. Enc. Law (2d Ed.), p. 985, that evidence of acceptance is unnecessary where the goods are in possession of the purchaser. I quote from Mr. Mechem as follows:
“‘If it appears,’ said the court in a leading case upon the subject, ‘ that the conduct of a defendant in dealing with goods already in his possession is wholly inconsistent with the supposition that his former possession continues unchanged, he may properly be said to have accepted and actually received such goods under a contract, so as to take the case out of the operation of the statute of frauds.’ Lillywhite v. Devereux,” supra.
It is said in 29 Am. & Eng. Enc. Law:
“It may be stated as a general proposition that the buyer has little more to do, if anything, than to remain in possession and claim under the contract of sale.”
The necessity of an acceptance is here sufficiently indicated.
Judgment reversed, and a new trial ordered.
Dissenting Opinion
(dissenting). I see no occasion to retreat from my former opinion. The question, as I read the record, is not: Was the defendant bound by a void parol contract because he did not repudiate it? The question is: Was the contract, otherwise void, made valid by delivery ? Under the record as I read it, defendant made a parol offer for the property already in his possession, bulky, and as to which further delivery was unnecessary and impracticable. This parol offer was
The inspection of the culls made by plaintiff’s inspector in conjunction with the defendant’s inspector and the defendant’s men, was made February 15th, and at that time the ends were cut off from certain culls, leaving the balance merchantable lumber. The amount of this merchantable lumber was 6,435 feet, leaving the amount of the culls 22,957. Defendant’s offer to pay $9.50 per M. was made after this inspection and communicated to the plaintiff on the 16th. On the 21st of February plaintiff wrote defendant, demanding payment. The bill claimed 22,957 feet of mill culls at $9.50 per M. I am unable to find anything in that letter indicating that defendant had informed plaintiff’s agent, subsequent to the time of his offer, that he would not purchase the culls on those terms. There is evidence of a refusal to purchase before that time.
