186 Mo. App. 207 | Mo. Ct. App. | 1914
— Tbis action, instituted before a justice of the peace on an account for office railing, glass partitions and doors, the amount being $333, resulted in a verdict for plaintiff, from which defendant appealed to the circuit court, where on a trial before
It was insisted at the trial in the circuit court that there was no evidence of delivery or acceptance of the goods, and as the sum claimed exceeded $30, and no memorandum in writing had been executed between the parties, that the transaction fell within the provisions of our Statute of Frauds. When this objection was made at the trial, counsel for plaintiff, admitting that the.contract was not in writing, stated that if they did not show a compliance with the statute, proving an acceptance and delivery of part of the goods sold, plaintiff could not recover. Thereupon plaintiff introduced its testimony and at the close of it defendant asked the court to declare that under the law and the evidence in the case plaintiff was not entitled to recover. The court refused this, whereupon defendant introduced its evidence, and plaintiff introducing evidence in rebuttal, defendant again renewed its request for a declaration to the effect that plaintiff could not recover. This the court refused and rendered judgment in favor of plaintiff and against defendant and its surety on the appeal bond for the amount claimed and interest. Filing a motion for new trial and excepting to the action of the court in overruling it, defendant has duly perfected its appeal to this court.
Here it is insisted that the action is one in the nature of assumpsit for the sale of goods, wares and merchandise at a price of more than $30, the transaction thus being within the Statute of Frauds; that as there was no written contract and no payment on account of the purchase price, the declaration of law asked by the defendant should have been given, as the evidence was insufficient to establish delivery and acceptance, both of which must occur to avoid the statute.
' The defense, apart from the Statute of Frauds, was that the articles were not as contracted for; that there had been no acceptance of them, and no delivery. As before remarked, the case was before the court without a jury and beyond the instructions asking for a verdict for defendant, no instructions or declarations of law were asked or given.
The question as to whether the articles sued for or any part thereof were accepted and received by defendant, both of which must appear, was a question of fact, to be determined by the trial court, and its conclusion is binding upon us, if supported by substantial evidence. There was substantial evidence to show an
Acceptánce and delivery need not be contemporaneous ; acceptance may precede delivery. A delivery, to take the case out of the statute, must be made in pursuance of the contract, and the question whether it was so made or not is for the jury or the court sitting as a trier of fact. “Dfie acceptance and receipt of a substantial part of the goods will be as operative as an acceptance and receipt of the whole; and the acceptance may either precede the reception of the articles or may accompany their reception.” [Garfield v. Paris, 96 U. S. 557, l. c. 566.]
In Cross v. O’Donnell, 44 N. Y. 661, it is said (1. c. 664): “There’ is nothing in the statute which requires that the accepting and receiving should be at the same time. Either may precede the other; and, after both have concurred, the statute has been complied with and the contract becomes operative and valid.”
This case presents a state of facts very similar to those in Victor v. Strook, 5 N. Y. Supp. 659, in which it was held that the facts in evidence were sufficient to take the case out of the operation of the statute.
Our conclusion is that there was no error in the action of the circuit court, and its judgment in favor of plaintiff is affirmed.