Godkin v. Weber

114 N.W. 924, 154 Mich. 207, 1908 Mich. LEXIS 701

• Court: Michigan Supreme Court
• Decided: January 31, 1908
• Docket: Docket No. 161
• Status: Published

Opinions

Grant, C. J.

{after stating the facts). The sole controversy in this cases arises from the mill culls. Was there a valid sale of them ? is the only important question. The original contract excluded mill culls, but contemplated that some would be mixed with the lumber. Whatever were so shipped defendant had the right to throw out. Upon notification it would have been the duty of the plaintiff to take thém away. If the mill culls, as the court instructed the jury, were sufficient in quantity to justify the defendant in refusing to accept the lumber, it was his duty to promptly notify the plaintiff. He did not do so, and furnished no legal excuse for the delay. Rut, as the court instructed the jury, this became immaterial, except as it might affect certain expenses to which the defendant claims he was subjected, because it was subsequently agreed that the merchantable lumber contracted for should be separated from the culls, and that defendant was liable only for the merchantable lumber.

Plaintiff claims that a sale of the culls was afterwards made at $9.50 per thousand. This claim is based,— (1) upon defendant’s letter of February 14th, and plaintiff’s letter of the 17th. (2) Upon the proposition made by the defendant to Mr. Ward, the inspector, to pay $9.50 per thousand, by him communicated to .plaintiff, plaintiff’s letter of acceptance of February 17th, and defendant’s retention of the goods without notice until February 22d.

Counsel for defendant insists that his letter dated February 14th referred solely to the two cars mentioned therein, and did not include the culls piled in the defendant’s yard. Plaintiff’s counsel contends that it did include the culls in the yard, and that plaintiff’s letter of February 17th was an acceptance of the offer contained in the letter of the 14th. The court left it to the jury to determine whether the two letters included the culls in the yard as well as those upon the two cars, and were understood by the parties to be an offer on the part of defendant to purchase the entire lot, and an acceptance thereof by the plaintiff. In this we think the court erred. Defendant’s letter does not refer to the culls in the yard, but solely to the culls upon the two cars. The plaintiff’s letter makes no reference to the letter of the 14th, but appears to be in reply to a letter of the 16th. We must therefore hold that plaintiff’s letter of the 17th was not a reply to defendant’s letter of the 14th, and the letters do not constitute a contract. The court should have so instructed the jury.

The court also instructed the jury:

“If you find, however, that this letter of February 14th was not for the mill culls, but that he proposed, and that the proposition accepted by Mr. Godkin was the one that was made to Ward when in the yard, then it would be a completed contract for the sale of those mill culls to Mr. Weber by Mr. Godkin, unless Mr. Weber unreasonably delayed in notifying Mr. Godkin. It was his duty on receipt of the letter to immediately disclose to Mr. Godkin exactly what he, Mr. Weber, considered to be the status of the case; if he did not do it, he would be considered in law as having accepted Mr. Godkin’s offer as binding upon himself. ’

Defendant contends that this was error, and that the alleged oral sale is void under the statute of frauds (3 Comp. Laws, § 9516), because there was no delivery or acceptance within the meaning of the statute. The lumber was in the possession and under the control of the defendant. He had made an oral offer of purchase. The plaintiff wrote an acceptance of the offer. Any further ceremony as to the delivery would have been unnecessary and impracticable.

Mr. Mechem says:

‘ ‘ Where the goods, at the time of the contract of sale, are already in the possession of the purchaser, * * * the nature of the delivery and receipt which will satisfy the statute is necessarily different. It is not necessary that the parties should go through the idle ceremony of returning the property to the seller that he may make a new delivery to the buyer, who is then to receive it anew. * * * Whether the acts show a receipt of this nature is ordinarily a question of fact for the jury, though where the facts are not in dispute the court may determine it. ” 1 Mechem on Sales, § 389.

Where an oral agreement was made for the transfer of 20 hogs mingled with others, and the vendor and vendee went where the hogs were and pointed them out, and the vendor charged the vendee the purchase price on account, the hogs remaining together in the same pasture as before, in the possession and care of the vendor, it was held that there was a sufficient delivery to satisfy the statute of frauds. Webster v. Anderson, 42 Mich. 554.

The rule is thus laid down in 29 Am. & Eng. Enc. Law (2d Ed.), pp. 984, 985:

“A long and unreasonable delay in returning the goods to the seller after they have been delivered to the buyer constitutes strong evidence of acceptance, and it has been said that practically the question resolves itself into whether the buyer, within a reasonable time, has rejected the property; the question whether the buyer has failed to reject the goods within a reasonable time being one for the jury. * * *

“ Where goods are sold to a buyer who is already in possession of them, the question what constitutes the requisite acceptance and receipt of the goods is one with which the courts have had considerable difficulty and have not always been in harmony. Although the facts and circumstances of each particular case are to be considered, it may be stated as a general proposition that the buyer has little more to do, if anything, than to remain in possession and claim under the contract of sale. According to some authorities the law does not require that he should go through the idle ceremony of delivering up possession to the seller and then taking back possession under the contract of sale.” See authorities there cited.

Laymen of average common sense would not consider that it was necessary to go through some ceremony to constitute a delivery and acceptance under such circumstances. Suppose these parties had met, the defendant having the property in possession, and defendant had said to the plaintiff, “ I will pay you $9.50 per thousand,” and that plaintiff had replied, “I will take it,” and the parties had separated, would defendant five days after-wards be permitted to say that there was no delivery or acceptance ?

Where goods are delivered under a parol sale, void under the statute of frauds, it is held to be the duty of the purchaser to repudiate immediately. Spencer v. Hale, 30 Vt. 314.

Where logs had been sold and were repurchased, being in possession of the repurchaser, it was held that no written memorandum of resale was necessary. Couillard v. Johnson, 24 Wis. 533.

The court left it to the jury to determine whether the delay from February 17th to the 22d was unreasonable. In this connection it must be borne in mind that in the due course of mail a letter mailed in Detroit would reach the plaintiff in Bay City in a few hours, and that there were other speedier methods of communication.

The other assignments of error are unimportant.

For the error mentioned, the judgment is reversed, and new trial ordered.

Blair, Moore, Carpenter, and McAlvay, JJ., concurred.