55 Wis. 427 | Wis. | 1882
Lead Opinion
There is no claim that the alleged contract or order for the carriage was in writing. On the contrary, it is conceded that it rested wholly in parol. For this rea_ son it is urged that it came within the statute of frauds, and hence was not binding upon Fra/m Falls, even if Louis had authority to make and did make the contract. The question is not without difficulty, and the decisions of the courts are by no means uniform. The statute provides that “ every oonti'actfor the sale of any goods, chattels, or things in action, for the price of $50 or more, shall be void, unless (1) a note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged therewith; or (2) unless the buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action; or (3) unless the buyer shall, at the time, pay some
In Towers v. Osborne, 1 Strange, 506, decided in 1722, “ the defendant bespoke a chariot, and when it was made refused to take it, and in an action for the value it was objected that they should prove something given in earnest, or a note in writing, since there was no delivery of any part of the goods. But the chief justice (Peatt) ruled this not to be a case within the statute of frauds, which relates only to contracts for the actual sale of goods, where the buyer is immediately answerable, without time given him by special agreement, and the seller is to deliver the goods immediately.” Forty-five years afterwards that decision was expressly sanctioned by Lord MaNseield and the whole court in Clayton v. Andrews, 4 Burr., 2101, and one of the justices took occasion to say that the case “ had always been considered as an authority in point upon questions of this kind.” Twenty-five years later, in Rondeau v. Wyatt, 2 H. Bl., 63, which was a contract to deliver at a future time 3,000 sacks of flour at a certain price per sack, Lord Loughboeough disapproved of the language used in the two former opinions, in so far as they indicated that the statute in no case extended to executory contracts of sale; but the opinion of the court expressly states that “ the case of Towers v. Sir John Osborne was plainly out of the statute, not because it was an executory contract, as it has been said, but because it was for worh and labor done, and materials and other necessary things to be found, which is different from a mere contract of sale, to which sjpecies of contract alone the statute is applicable.” Page 67.
In Cooper v. Elston, 7 Term, 16, Lord Kenyon, C. J., follows Rondean v. Wyatt, and says that “ Towers v. Osborne
Garbutt v. Watson, 5 Barn. & Ald., 613, was decided six years later, and was for the non-acceptance of 100 sacks of flour, to be got ready by the plaintiffs, who were millers, by
The case of Atkinson v. Bell, 8 Barn. & C., 277, was decided in 1828. The defendant ordered certain frames of the patentees, and ordered alterations upon them, and then refused to accept them. The action was for goods sold and ■delivered, goods bai-gained and sold, work and labor, and materials found and provided, but there was no count for the non-acceptance of the goods. The plaintiffs failed to recover by reason of the defective pleading, but the court said: “ If the declaration had contained a count for not accepting the machines, the plaintiffs might have been entitled to recover; ■and I think now that upon payment of costs they should be allowed to set aside the nonsuit, and add other counts to the declaration, and have a new trial.” Page 281. In that ■case the court expressly declared that if the employer refuses in such case to accept, a special action on the case for such refusal may be maintained by the party employed. Page •283.
So the case of Towers v. Osborne was distinguished, but not questioned, in the still later case of Smith v. Surman, 9 Barn. & C., 574. A year later the. statute known as Lord Tenterden’s act, was passed, and the statute of frauds in question was thereby extended “ to all contracts for the sale ■of goods, . . . notwithstanding the goods may be intended to be delivered at some future time, or may not at the tíme of such contract be actually made, procured, or provided,
In Mixer v. Howarth, 21 Pick., 207, the defendant ordered the plaintiff to manufacture for him a buggy of a kind described, and on refusal to accept was. sued therefor, and Chief Justice Shaw stated the rule thus: “ When the contract is a contract of sale, either of an article then existing or of articles which the vendor usually has for sale in the course of his business, the statute applies to the contract as well where it is to be executed at a future time, as where it is to be executed immediately. But where it is an agreement with a workman to put materials together and construct an article for the employer, whether at an agreed price or not, though in common parlance it may be called a purchase and sale of the article, to be completed imfwbwro, it is not a sale until an actual or constructive delivery and acceptance; and the remedy for not accepting is on the agreement.” To the same effect are Spencer v. Cone, 1 Met., 283, and Goddard v. Binney, 115 Mass., 450. This latter case was for the price of a buggy manufactured by the plaintiff for the defendant upon his special order, and the court say: “The effect of these decisions we understand to be this, namely: that á contract for the sale of articles then existing, or such as the vendor in the ordinary course of his business manufactures
In New Jersey the rules deduced from the English and American cases are stated to be: “ (1) That a contract for the sale of goods which is purely executory is as much within the statute as is one to be executed in prmenti. (2) That where a contract is made for an article not existing at the time in solido, and where such article is to be made according, to order, and as a thi/ng distinguished from the general business of the malcer, then such contract is, in substance and effect, not for a sale, hut for worh a/nd materials. The first of the above rules is now received everywhere with entire judicial unanimity. With regard to the second rule much conflict of opinion exists, but I think it is recommended by its evident consonance with the object of the statute, as well as by the decided weight of authority.” Finney v. Apgar, 31 N. J. Law, 270, 271. In support of it the earlier Massachusetts cases, and Crookshank v. Burrell, 18 Johns., 58, are cited. This last case was for the refusal to accept the wood-work of a wagon manufactured by the plaintiff upon the special order of the defendant, and it was held not to be within the statute. In the opinion Chief Justice Spencer says: “ In Bennett v. Hull, 10 Johns., 364, we declared that the statute applied to executory as well as other contracts, and we recognized the- cases of Rondeau v. Wyatt and Cooper v. Elston, supra, as containing a just and sound construction of the statute. In giving the opinions in those cases, the judges referred to the case of Towers v: Osborne with approbation. . . . The distinction taken by Lord Louguboeough in Rondeau v. Wyatt, and by the judges, who gave opinions seriatim, in Cooper v. Elston, Avas between a
That case was followed by Sewall v. Fitch, 8 Cow., 215, which was to recover damages for not delivering cut nails to be manufactured by the defendant under a contract with the plaintiff, and Savage, C. J., took occasion to say that Towers v. Osborne was “ rightly determined, though upon a wrong principle,” as held in Rondeau v. Wyatt. To the same effect are Robertson v. Vaughn, 5 Sandf., 1; Donovan v. Willson, 26 Barb., 138; Parker v. Schenck, 28 Barb., 38; Mead v. Case, 33 Barb., 202; Parsons v. Loucks, 4 Robert., 216; S. C., affirmed, 48 N. Y., 17. This last case was for the alleged breach of contract to manufacture and deliver a quantity of paper, and it was held not to be within the statute. The opinion of the court states that “ the distinction is between the sale of goods in existence at the time of making the contract, and an agreement to manufacture goods. The former is within the prohibition of the statute, and void unless it is in writing, or there has been a delivery of a portion of the goods sold, or a payment of the purchase price. The latter is not.” Page 19.
The more recent case of Cooke v. Millard, 65 N. Y., 359, follows this distinction. That was for the price of lumber then in the plaintiff’s yard, but a portion of which was to be dressed in accordance with the defendant’s contract of purchase, and it was held to be within the statute. The judge writing the opinion of the court, however, notwithstanding their inapplicability to the case then in hand, summarily disposes of the reasoning in Robertson v. Vaughn, Crookshank v. Burrell, Sewall v. Fitch, Parker v. Schenck, and Parsons v.
From the whole opinion, however, it was the evident intention of the court to preserve the distinction made in some of the English cases, supra, and adopted by Chief Justice Spencer in Crookshank v. Burrell, supra, and Judge BroNSON in Downs v. Ross, 23 Wend., 271-2, which was, that to bring a case within the statute it must be “ a contract for a thing existing m solido ” at the time of making the contract. We infer this because the learned judge distinguishes the case from Sewall v. Fitch and Parsons v. Loucks, supra, and states that in the latter case the paper was not in existence, “ except so far as such existence may be argued from the fact
We are not aware of any reported judicial utterance in this state bearing upon the question, except Hardell v. McClure, 2 Pin., 289; S. C., 1 Chand., 271. In that case the wheat was to be delivered at a particular mill, and the trial court refused to instruct the jury “ that the wheat existing in solido at the time the contract was made, and not having to be raised or manufactured, and though unthreshed, it was a contract within the statute of frauds, and the plaintiff could not recover; ” and for that refusal the judgment was reversed. On the strength of Garbutt v. Watson, and some other later English cases, supra, the opinion of the court disapproves of Clayton v. Andrews, supra, and Eichelberger v. McCauley, 5 Harr. & J., 213, and follows and approves Downs v. Ross, 23 Wend., 271, which was also a contract for unthreshed wheat. This is put upon the ground that it is the “ better reason,” though not the “ better authority.” After a very careful, examination of the authorities, we are induced to believe that Hardell v. McClure, supra, was well decided, not only by force of reason, but upon the weight of authority, for it was clearly not a contract for special labor in manufacturing anything, but a contract to sell and deliver a certain quantity of wheat. See, also, Clark v. Nichols, 107 Mass., 547.
The facts in the case before us, as appears from the special verdict, are in no respect similar to those in Hardell v. McClure. There is no claim that at the time of the allege# contract the carriage had any existence in solido. The plaintiff was a manufacturer of carriages, but whether even the materials from which the one in question was manufáct-
It may be well to obseiwe that if we were to apply the rule adopted in New York of existence m solido or nonexistence as the only test, and if the facts were that the carriage in question was such as the plaintiff was then accustomed to manufacture and keep in stock for general sale, and that this carriage would have been manufactured by the plaintiff •without any order from Falls, yet it would be without the statute, because it was not in existence in solido at the time of making the contract. But such assumed facts would bring the case within the statute, under the rule adopted in Massachusetts, since it is there in effect held that if, in the ordinary course of business, the article would have been manufactured or procured for the general market by the
But we must reverse this judgment for a manifest error committed upon the trial. The plaintiff was allowed, against objection of counsel on the part of the defense, to testify as to Franz FaWs financial circumstances, his responsibility
Concurrence Opinion
I cannot concur in so much of the opinion of the court in this case as holds that 'the contract which is the basis of the respondent’s cause of action is not within the statute of frauds. In my opinion, the contract upon which suit is brought is a contract for the sale of a chattel of the price of $50 or more, and is therefore void unless a note or memorandum of such contract was made in writing, and subscribed by the parties; or some part of the purchase money was paid by the appellant. I do not think the case at bar differs in principle, though it may in its facts, from the case of Hardell v. McClure, 2 Pin., 289. The decision of the court in that case seems to- have been accepted as good law to its fullest extent, and has not, so far as I have been able to ascertain, been questioned by this court since it was announced, thirty years ago. I think it much safer to adhere to the broad construction of the statute adopted in that case, than to attempt to limit it by distinctions which cannot be well defined, and which will necessarily give rise to endless litigation. I think the true test of what is a sale of a chattel, within the meaning of the statute, is that when the final result of the contract is the sale of a chattel, it is within the statute, without reference to'the question whether
By the- Court.— The judgment of the circuit court is reversed and the cause is remanded for a new trial.