8 Wash. 191 | Wash. | 1894
The opinion of the court was delivered by
— Appellant sought by this action to recover the amount alleged to be due upon a sale of personal property to the respondent. The property consisted of certain buildings owned by the appellant, and situated on the land of the respondent. The price agreed to be paid therefor was more than fifty dollars, and there was no memorandum of writing evidencing the sale. It was, therefore, void under the statute of frauds, unless there was such a delivery by the appellant and acceptance by the respondent as to satisfy the requirements of such statute.
At the close of the testimony of the plaintiff the court below granted a motion for non-suit on the ground that such testimony was not sufficient to warrant the submission to the jury of the question as to whether or not there had been such delivery and acceptance. To reverse this ruling, this appeal has. been prosecuted. It sufficiently appeared from the proofs that plaintiff was the owner of the buildings with the right to remove them from the land
‘ ‘ Q. What did you do in regard to those buildings on or about the first day of January, as between you and Mr. Gregg, the defendant in this case ? A. I went in as his tenant.
‘ ‘ Q. State the facts as to your going in. A. Some time prior to the first day of January, I met Mr. Gregg in the rear of the building occupied by Mrs. Noftsger, as a grocery store, and I then proposed to sell him the buildings for six hundred dollars.
“Q. What buildings? A. The buildings that J. D. Rice & Co. occupied as a store prior to the first day of January. He to take the buildings for six hundred dollars, and I to take possession of them until I closed out the stock that I had in there; he to take twenty dollars a month rental from the purchase price of the buildings, and whenever I got through with the use of the buildings he to pay me the difference between twenty dollars a month for the time occupied and six hundred dollars, the purchase price. And he answered all right.
“Q. What, if anything, did you do next? A. I went in the buildings.
“Q. Under that agreement? A. Under that agreement.
“Q. How long did you occupy the premises?
“Counsel for defendant then admitted that they were occupied by the plaintiff from the first day of January to the 22d day of May, 1892.
“Q. During that time, what, if anything, did you do about the rent? A. I did nothing at all.
‘ ‘ Q. Did the defendant at any time demand the rent for these buildings? A. Nothing done whatever. There was never any demand made on me for rent.”
Did this testimony so far establish the delivery of the property by appellant and an acceptance thereof by the respondent as to authorize the submission of that question to the jury? That such question is ordinarily one of fact to be decided by the jury, and not one of law to be passed upon by the court, is well established by the authorities. See Benjamin on Sales, §§144-5; Smith v. Stoller, 26 Wis. 671; Mason v. H. Whitbeck Co., 35 Wis. 164.
Such being the rule, the court committed error in taking this question from the jury, if any reasonable construction of the testimony on the part of the plaintiff would establish the fact that there had been a delivery and acceptance. If the delivery and acceptance was the best that could reasonably be expected under all the circumstances, it would take the case out of the statute of frauds. As to all bulky articles not capable of actual, manual delivery, there may be a constructive delivery which will be perfectly good. Between the parties to the transaction there may be a legal delivery and acceptance without any actual change of possession. One may sell personal property and remain in possession thereof as the bailee of the purchaser, and the sale be entirely valid. See Benjamin on Sales, § 182; Janvrin v. Maxwell, 23 Wis. 51; Snider v. Thrall, 56 Wis. 674 (14 N. W. 814); Smith v. Bryan, 5 Md. 141.
That the possession of a tenant of a building is the possession of the landlord, is too well established to require the citation of authority. It will follow that if there was
In our opinion, there was sufficient testimony to warrant the jury in finding these facts, and that the question as to whether or not there had been a delivery and acceptance should have been left to it.
Judgment must be reversed, and the cause remanded with instructions to overrule the motion for non-suit, and proceed with the cause.
Dunbar, O. J., and Stiles, Scott and Anders, JJ., concur.