Aguirre v. Allen

By the Court, Mitchell, J. By the terms of the sale cash was to be paid on the delivery of the raisins. The payment of the cash is sufficient evidence that the raisins were delivered in pursuance of that contract. Goods in such cases are often delivered a few days before payment; but among merchants of standing the payment never precedes the delivery. The quantity was such (8900 boxes) that very naturally the payments were not made at once, but (as stated) some in that month and some in the next—probably as the deliveries were made. If they never were delivered, then the plaintiffs, under their common counts, would have been entitled not to the $862,51 only, but to the whole price paid by them. It must be assumed, therefore, that the raisins were delivered, in pursuance of the contract of sale, and paid for pursuant to that contract—no other contract being proved; especially when the case does not show that the ground was assumed, below, that the raisins were not delivered. ■ The contract was not made by the broker. He merely brought the parties together, and then they made their own contract. [77] He was not employed by the plaintiffs at all, and was not their agent, and did not pretend to act for them. He made some memorandum of the sale, and sent a copy of it to the defendants, but never sent a copy to the plaintiffs ; nor did they ever see it. That entry could not affect the plaintiffs ; for he was not their authorized agent. In the purchase they acted for themselves, and directly with the sellers. The broker only acted to bring the parties together, and never made any bargain in relation to it. His entry, therefore, bound no one, and probably was made only for the purpose of enabling him to make the proper charge against the defendants, for effecting the sale. The court was right, therefore, in admitting the parol evidence of the contract. That was the only contract that was made. The court below did not exclude the book; and they were right in excluding the copy memorandum offered, for another reason, viz. that it was not a correct copy from the book. It is contended that the contract is void under the statute of frauds ; that it was for a sale of a chose in action, or of a gratuity, viz. the right to the return duties. This is a mistake of the contract. It was not to transfer the right to claim the duties from the government, but a contract on the part of the defendants that if any thing should be received by them from the government the plaintiffs should have the benefit of it. In other words, that the defendants should receive the return duties and pay them over to the plaintiffs. Those duties were 15 per cent. The contract then was substantially that if the defendants should receive those duties they would return 15- per cent to the plaintiffs, and reduce the price so much. If the duties had been returned on the day of the contract the plaintiffs would have been bound to pay just so much the less. And it can not affect their rights that they have paid promptly. The statute of frauds can not apply; for the goods were delivered ; -not merely a part of"them, but the whole. That bound the contract—bound the plaintiffs so that after that they could not escape from the contract, if the raisins had been destroyed the next moment, or if the return duties had never been allowed. And it equally bound the defendants. The law, instead of pre [78] venting, would encourage fraud, if after- a contract had been ■■completely executed on one side, and in part on the other, it -could be avoided in part by the party who had only fulfilled a part; and that to© without returning the consideration'for that part of the contract. If the defendants can avoid this part of the contract, they must refund the consideration on which it was made. And that would be to refund the like amount of the purchase money paid to them. The judgment belew should be affirmed with costs.