20 Mich. 410 | Mich. | 1870
Defendants in error sued plaintiffs in error for the price of a car load of lumber. The defense was in substance that two car loads were included in the same original bargain, which was verbal. That when the first load arrived at Kalamazoo from Mattawan, where it was shipped, the purchasers refused to accept it, as not conforming in quality to the contract. That thereupon one of the vendors came to Kalamazoo, and on his assurance and promise that any deficiency should be made good in settling for the second car
There was considerable conflict in the testimony upon some material points. In charging the jury, the Court, among other things, charged them “that if the contract was that the first car load of lumber was purchased to be delivered on the car at Mattawan, and no time of payment was agreed upon otherwise, the pay for that car load was due and payable when the car was loaded, and it was the legal duty of the defendants to pay for the same then and there, and that the lumber became their property when so delivered.”
The effect of this charge was to rule out a substantial part of the defense, as founded upon no consideration. The verbal contract unquestionably contemplated the shipment from Mattawan, and, if the shipment passed the title and bound the parties, then so much of the agreement as was claimed to have been made in Kalamazoo in connection with the acceptance and payment, would become nugatory.
Plaintiffs in error claim that the first contract was void under the statute of frauds, being for more than fifty dollars worth of lumber, without earnest or delivery, and that therefore there was no binding agreement until the acceptance of the first car load. Defendants in error insist that a delivery to the carriers was as effectual as if made to the parties, and that the sale became complete, therefore, when the lumber was shipped.
Where a carrier has been employed by a vendee as his agent to receive goods for him, there is reason for holding his acts valid to bind his principal; and there will, perhaps, be no great difficulty in holding his acceptance effectual in cases where there is no reserved right of personal inspection or decision. But where the delivery to the carrier is merely in pursuance of the same verbal contract under which the goods were purchased, and the carrier has no independent and separate authority to act for the purchaser,
It involves a sophism to hold that a void contract can furnish authority to a third person to ratify it. If it was good to create the agency, the agency was entirely unnecessary. The same principle was involved in Holland v. Hoyt, 14. Mich., 238, where it was held that a person who had not sufficient authority to bind his principal under the statute of frauds, by a contract for the sale of land, could not accomplish the same result by way of estoppel. The same power necessary for the one was necessary for the other.
And in Chamberlin v. Dow, 10 Mich. R., 319, it was held that a verbal contract by two persons jointly, to purchase articles within the statute, could not be made effectual against both by the subsequent ratification by one of them, having no authority independent of the verbal contract. The contract is wholly and not partially void.
The ruling was erroneous, and the judgment must be reversed. The remaining errors assigned are not very material, and we do not consider it necessary to discuss them, as the same points are not likely to arise on a new trial.
Judgment must be reversed, and a new trial granted.
