Alderdice v. Truss

7 Del. 268

• Court: Superior Court of Delaware
• Decided: July 5, 1860
• Status: Published

Opinion

The Court,

Gilpin, Ch. J.,

charged the jury, that the 17th section of 29th Charles 2d chap. 3, commonly called the English Statute of Frauds, which provides that no contract for the sale of goods of the value of £10, or upwards shall be good and effectual in law, unless the buyer shall accept a part of the goods sold and actually receive the same, or give something in earnest to bind the bargain, or in part payment &c., was not, and never had been in force, or operation in this State. It had never been reenacted by the legislature here, although our first statute of frauds was a very early one; nor had it ever been recognized by any judicial decision in this State, as in force here. And as the existing statute in this State, contained no such provision applicable to such a contract, as the one now in question, it was no defence to this action, that there was no part delivery, or earnest given, or taken, to bind the bargain, or part payment, or note, or memorandum in writing concerning it; and even if it ever had been regarded as in force here by usage prior to the passage of our own statute of frauds which re-enacted many of the provisions of the English statute on the subject of sales and contracts, omitting entirely the pro visions of the seventeenth section, we should have considered that our own statute would have superceded it, because the only law which we now have on the subject is to be found in the written provisions of our own statute. What Chancellor Kent has said in regard to the provisions of the English statutes being in force in this country, in the passage cited from his commentaries, if justly susceptible of the construction which the counsel for the defendants, had given it, must therefore be received with this qualification as to this State.

If therefore, there was a bargain struck, or a complete contract made and concluded between the parties in this case, in regard to the quantity of corn, seven or eight thousand bushels, in question, it would be mutual and binding on both parties, without the delivery of any part of it in token of the whole, or the giving, or taking of earnest, or part payment, or any note, or memorandum of it in writing, to confirm and ratify it. As to the definition of a contract, or when a bargain or contract of sale of goods is considered as made and concluded in law, the counsel do not appear to differ essentially in their opinions. It had been defined to be upon the authority of an elementary writer, an agreement to do, or not to do a particular thing for a sufficient consideration; but no special form of words was necessary for this purpose, for the assent and consent, or the concurrence of the will of the parties contracting, in the matter of agreement between them, however it may be communicated, or expressed by them, constitutes the essence, of the contract. On this subject, Chancellor Kent in his commentaries, which are of very high authority, says, “ mutual consent is requisite to the creation of the contract; and it becomes binding when a pimposition is made on one side and accepted on the other; and on the other hand it is no contract, if there be an error or mistake of a fact, or in circumstances (and he might have added, or any false and fraudulent misrepresentation) going to the essence of it.” 2 Kents Com. 477. He also remarks that when the terms of sale are agreed on and the bargain is struck, and everything that the seller has to do with the goods is complete, the contract of sale becomes absolute as between the parties, without actual payment by the buyer of them, or delivery by the seller of them, and the property in the goods in such ease, with the risk of all accidents to them, from that moment vests in the buyer. He is entitled to the delivery and possession of the goods bought, on paying, or tendering the price for them, and not otherwise, that is to say, when nothing is said at the sale, or the time of entering into the contract, as to the time of delivery, or the time of payment. The payment or tender of the price for them, is in such case, a condition precedent implied in the contract of sale; for he is not entitled to the delivery and possession of the property purchased and cannot sue for them, or upon the contract of sale for a breach of it, until he pays or tenders the price agreed upon for it. 2 Kent’s Com. 492. What is meant by the foregoing qualification, when the terms of sale are agreed on, and the bargain is struck, and every thing the seller has to do with the goods is complete, is simply this, when the article, or commodity bargained to be sold, is then in readiness to be delivered, and requires nothing further to be done to it, to complete it and fit it for delivery to the purchaser. The time within which such a contract, when made and concluded, is to be performed and complied with by the parties respectively, that is to say, within which the price is to be paid, or tendered by the purchaser on his part, for instance, is a reasonable time after the making of it, and this would depend on circumstances to be considered by the jury, such as the usages and customs of the trade, the position and quantity of the goods to be removed, and the situation and conveniences of the parties with reference to them. Four or five days, however, would not be an unreasonable time for the execution and performance of such a contract as this, provided the jury should be satisfied from the evidence, that it was a contract complete and binding upon the parties, accord ing to the definition and explanation which he had endeavored to give them of a contract complete, concluded and binding in law, in the exposition which he had just submitted to them.

If at the time when the parties went out of the office, or store of the defendants on the occasion spoken of by the witnesses, to see the corn, no agreement, or bargain had been made and concluded between them to sell on the one hand and to buy on the other, and the matter was not then fully settled and concluded to their mutual satisfaction and consent, but was still open and to be determined after seeing the corn, then there was no proof of a complete and binding contract between the parties in relation to the matter, because there was no evidence of any contract whatever made between them after they left the office. But if, on the contrary, the defendant, James Truss, in the office and before they left it for this purpose, offered to sell the corn, in question, consisting of seven or eight thousand bushels, to the plaintiff, William H. Alderdice, at eighty-three cents per bushel, and he then and there agreed without qualification, or condition, to take it at that price, then it was a complete and binding contract between the parties in this action. And if the latter, then their verdict should be for the plaintiffs; but if otherwise, for the defendants. If for the plaintiffs, the measure of the damage sustained by them would be the difference between the market price of corn at the place of sale on the 7th and on the 12th of March, 1859.

Verdict for defendants.