167 Mich. 179 | Mich. | 1911
This is an action of assumpsit for the purchase price of a horse which the plaintiff claims to have sold and delivered to the defendant. The facts in the case are much in dispute. The plaintiff claims that on September 7, 1909, the defendant came to the village of Mesick to buy a team of western horses from the plaintiff, and that, not knowing a great deal about horses, or at least desiring the assistance of some one, the defendant brought with him one Newman, to pick out and take charge of such horses as he might purchase; that defendant and Newman, with others, went with the agent of the plaintiff, one Brown, to the yard of the plaintiff, where a number of plaintiff’s horses were; that defendant and Newman selected two horses; that something was said about halter-breaking the horses, which were wild; that plaintiff’s said agent stated that he would not halter-break them, and that they were to be sold right there in the yard, and all that he would do was to rope them; that defendant replied that it would be just as well, as he had brought Mr. Newman along to break the horses, and that he (Newman) would take charge of them from the start.
The horses selected were a bay and a black. The price
The claim of the defendant was that the horse was not delivered to him, or to any person for him, and that neither he, nor any one for him, ever accepted the horse. He further claimed that he was not to take the horse, or to pay for it, until it had been halter-broken, and that the sole and only purpose of putting the rope on the horse was to break it to the halter. There was a sharp conflict in the testimony, and numerous witnesses were examined whose testimony tended to support the respective claims of the parties.
At the close of the plaintiff’s case, the defendant moved for a directed verdict in his favor, upon the ground that, because of the statute of frauds, the plaintiff had not made a case, in that he had not proven a delivery and acceptance of part of the property sold. The trial judge was of
The first, second, and twelfth assignments of error relate to the refusal of the court to direct a verdict for the defendant. We are of opinion that there was no error of the court in its ruling upon that branch of the case. The third, fourth, and fifth assignments of error complain of rulings in the admission of testimony. It is sufficient to say that we find no error here.
The sixth assignment of error relates to the charge of the court, in this: After stating the plaintiff’s claim, the court said:
“ If you find by a fair preponderance of the evidence that the facts as above outlined are these, then your verdict will be for the plaintiff in the sum of $90. There has been some testimony that this was to be the sale of two horses, but I charge you, as matter of law, that if the bay horse was selected and delivered to Mr. Hochradel, and that after coming into his possession, by himself or through his agent, a loss was sustained, that loss would be Mr. Hochradel’s loss, and the horse would be his horse, notwithstanding the fact that the two horses were not delivered. In other words, the delivery and acceptance of this part binds Mr. Hochradel to pay the price of so much as was delivered and accepted, if you find there was a delivery and an acceptance of the horse by Mr. Hochradel.”
It is well settled that a delivery of a part of the goods satisfies the statute. If the testimony of the plaintiff’s agent and that of his other witnesses was true, there was a delivery and acceptance of the horse, and thus the case would be taken out of the operation of the statute of frauds, and, whether true or not, was a question for the jury, and was properly submitted. The following cases are in point: Alderton v. Buchoz, 3 Mich. 322; Whaley
The seventh and eighth assignments of error relate to the charge of the court upon the subject of agency, as follows:
“As to whether or not Mr. Newman was the agent of Mr. Hochradel, as the plaintiff claims, and acting for him, that is a question of fact which you are to determine from all the facts and circumstances in the case. The fact that Mr. Newman says that he was not the agent is not binding upon Mr. Kendrick. It is for you to say from the testimony whether Mr. Newman was in fact acting for Mr. Hochradel, either as agent or employé, and in passing upon this question it is your duty to take into consideration the instructions that Mr. Hochradel gave to Mr. Newman relative to the horse delivered at the time, if you find that he gave any instruction along that line. On the question of agency, you have a right to consider whether there is any testimony to show ratification — that is, the acceptance or acquiescence by Mr. Hochradel in what Mr. Newman did; that is, did Mr. Hochradel consent to the action in his behalf by Mr. Newman ? You have also a right in passing upon this question to consider whether there was an original authority; that is, whether Mr. Hochradel brought Mr. Newman there for the purpose of assisting him in taking charge of the horse in the yard, as has been testified to by the plaintiff. You have also the right to consider whether Mr. Hochradel held out to the world, and to Mr. Brown, that Mr. Newman was his agent, to do the things Mr. Newman did; that is, to take charge of and break the horse or take charge of the horse for Mr. Hochradel from the time the rope was given him in the yard there, as well as all other facts and circumstances in the case.”
In view of the testimony tending to support the plaintiff’s claim, we are of opinion that the question of agency was properly submitted to the jury. Wilkinson v.
Counsel for defendant contends that this was to be a cash sale when consummated, and that the deal with defendant could not be completed until plaintiff’s agent had delivered the goods and collected the money therefor. We do not think that this proposition is controlling here. In Harris Photographic Supply Co. v. Fisher, supra, there was a verbal agreement for the exchange of personal property exceeding $50 in value for real estate. The vendee received and accepted the goods, but refused to convey the real estate; the agreement not being in writing. It was held that the title of the personal property passed, and the vendor was allowed to recover its value. The court said:
“ But the claim of plaintiff is that there was part performance; that there was a delivery of goods to the defendant, which he accepted, — and the jury, under a fair submission, have found that to be so. This would take the case out of the statute of frauds.”
As we have already indicated, there was testimony to show that Newman was the agent of the defendant for the purpose of taking charge of the horse at the time of the claimed delivery and acceptance in the yard, and that defendant said that N ewman would take charge of the horse for him from the start. There was testimony to the
We have examined the assignments of error not here specifically referred to, and are of the opinion that there is no reversible error in the record, and that the judgment of the circuit court should be affirmed.