218 P. 984 | Ariz. | 1923
The facts pleaded and shown by the plaintiff’s evidence are as follows: The defendant, on November 14, 1917, sold plaintiff 180 shares of the stock of the La Osa Live Stock & Land Company, for $27,600. In August, 1918, plaintiff joined the army, first resigning as director and secretary of the La Osa Live Stock & Land Company, and was away from Arizona until December, 1918. During his absence the La Osa Live Stock & Land Company was placed in the hands of a receiver at the instance of one of its creditors, a Texas bank. The largest creditor of the company, the Merchants’ National Bank
Defendant informed plaintiff he had completed arrangements to reorganize the La Osa Company, provided the then receiver could he removed and a new one appointed, and asked plaintiff to go with him to Phoenix and help to secure the appointment of another receiver, stating he would buy plaintiff’s stock in said company and pay him therefor $27,600 as soon as said company was reorganized. Plaintiff did go to Phoenix for the purpose of helping to secure the removal of the receiver, but the change was made without any assistance from plaintiff, his help becoming unnecessary. Later the agreement, as stated above, was modified, defendant agreeing to take only $17,600 worth of such stock, and to pay for the same as soon as he could go to St. Paul and complete the reorganization of the La Osa Live Stock & Land Company. Defendant did go to St. Paul, and did reorganize the company, and, failing and refusing to perform his agreement, plaintiff brought this suit for the sum of $17,600, tendering into court the stock to cover that amount, at the agreed price. Plaintiff, testified that he borrowed money on the faith of defendant’s promise to buy stock, and made another cattle deal, expecting to use the money to be paid to him by defendant to carry it out.
Defendant’s testimony was not in accord with the plaintiff’s, he contending he was to take plaintiff’s stock, paying therefor only on condition that the company was reorganized by him in connection with certain other named individuals who were to assist him in paying for plaintiff’s stock according to percentages named, and that plaintiff knew this. He says the reorganization contemplated was never effected.
The plaintiff does not contend that the contract, being in parol, was not within the statute of frauds, but he says the jury should have been permitted under the evidence to decide whether he had fully performed his part of the contract, so as to take it out of the statute, or whether defendant had by words and conduct assented to becoming the owner of stock, thereby taking the contract out of the statute. The statute in question is the fourth section of the Uniform Sales Act and paragraph 5152 of the Civil Code of 1913, and reads as follows:
“A contract to sell or a sale of any goods or choses in action of the value of five hundred dollars or upwards shall not be enforceable by action, unless the 'buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged, or his agent in that behalf.
“The provisions of this section apply to every such contract or sale, notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of such contract or sale be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery; but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller’s business, the provisions of this section shall not apply.
*431 “There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods.”
It is not contended that defendant paid plaintiff any part of the alleged purchase price, or that the stock or any part of it was ever delivered to him or to anyone for him. The only act performed by plaintiff, according to his own claim, was to go to Phoenix with the defendant, at defendant’s request, to help secure the removal of the receiver in order that another receiver could be appointed. While plaintiff’s claim is that this act of his was a part of the consideration going to defendant, we think it quite clear that plaintiff felt it unnecessary to have another receiver appointed, and that his efforts in that respect would have been the same without any offer from defendant to buy his stock. Indeed, plaintiff says, in answer to the question, “You wouldn’t have gone [to Phoenix] if Mr. Kinney had asked you to go without that promise” (that is, his promise to buy):
“If any member of the company had come to me and said ‘this company needs your testimony up there [Phoenix] and it is vital; I want you to come up,’ I would have gone. Now that is all there is to it.”
But the statute provides just what acts or things will take a parol contract out of the statute, and what plaintiff claims he did'is not one of them. The rule in that regard is stated in 27 O. J. 346, section 428:
“The statute with respect to the sale of goods, wares, and merchandise expressly provides what acts of part performance shall be sufficient to validate an oral contract of sale, that is, earnest or part payment, or receipt and acceptance of part of the goods. Accordingly the doctrine of part performance has no application to the sale of goods.”
The following cases, cited by defendant in his brief, all go to the point that the plaintiff has not shown any facts taking the contract sued upon out of the statute of frauds: Grant v. Milam, 20 Okl. 672, 95 Pac. 424; Dinnie v. Johnson, 8 N. D. 153, 77 N. W. 612; Hoffman v. Wisconsin Lumber Co., 207 Mo. App. 440, 229 S. W. 289; Dierson v. Petersmeyer, 109 Iowa, 233, 80 N. W. 389; Porter v. Patterson, 42 Ind. App. 404, 85 N. E. 797; Dauphiny v. Red Poll Creamery Co., 123 Cal. 548, 56 Pac. 451; Friedman v. Plous, 158 Wis. 435, 149 N. W. 218; Hinchman v. Lincoln, 124 U. S. 38, 31 L. Ed. 337, 8 Sup. Ct. Rep. 369 (see, also, Rose’s U. S. Notes).
Plaintiff makes some contention that defendant should be estopped to deny sale or plead the statute because he (plaintiff) by reason of defendant’s promise to buy his stock borrowed money and otherwise
Plaintiff did not plead estoppel, nor do the facts show that he had suffered any injury by reason of defendant’s failure to perform his verbal contract.
The only case cited by plaintiff in support of his contentions is Diamond v. Jacquith, 14 Ariz. 119, L. R. A. 1916D, 880, 125 Pac. 712. We do not think the case is in point. The plaintiff in that case had fully performed his contract of service, and was suing for his wages. The agreement sued on was one to work for the defendant for a year, at wages agreed upon. After the services were rendered, the defendant refused to pay the agreed wages, upon the ground that it was within the statute of frauds, and we held that, since the plaintiff had fully performed the contract, the statute of frauds had no application.
No error appearing, the judgment is affirmed.
McALISTER, C. J., and LYMAN, J., concur.