Edgerton v. Hodge

The opinion of the court was delivered by WilsoN, J. The parol agreement, entered into by the parties, June 80th, being for the sale of goods, wares and merchandise for the price of forty dollars and more, is within the statute of frauds, and inoperative, unless taken out of the statute by the subsequent acts of the parties. It is claimed by the plaintiff that the defendant’s letter under date of July 1st, and the depositing of the plaintiff’s letter with the fifty dollars in the postoffice on the 2d of that month, constitute a payment of part of the purchase money within the meaning of the statute. It will be'observed that when those letters were written, no binding agreement had been con- • eluded. • The defendant, in his letter of July 1st, says: “ According to our talk yesterday, you bought my cheese for the season. I shall stand to it, but shall want fifty dollars to bind it.” By that letter the plaintiff was notified that he could make the bargain binding upon himself as well as the defendant, by paying to the defendant the sum demanded for that purpose. The plaintiff on the 2d day of July enclosed fifty dollars in Utter, directed to the defendant and deposited it in the post of , which letter was delivered to the defendant on the 8th of 1 ■ » ith. He did not accept the money, but returned it to-1 e i■ niff. It is clear that the act of depositing ■■>■■■ . ■ ■ ■ ney in the postoffice was nota payment to the aeffii «¡tor did not direct the money to be sent by mail; it contains r.-"! .g that would indicate. that the defendaiit expected the plaintiff d reply by letter, or accept the proposition by depositing the . .y in the postoffice ; the fact that the defendant by lette» Jered to allow the., plaintiff to perfect the agreement, by payiiv- ,■ rt of the purchase money, did not.authorize or invite the plain • to send the money by mail, or . make the mail the defendant’s ■> ;• hr of the money. The language of the defendant’s letter is : * shall want you to pay me fifty dollars to bind it,” that is, to make it a valid contract. The money, when deposited in the postoffice, belonged to the plaintiff; it belonged to the plaintiff while be;'-<„" buried by mail [679] to the defendant, and it would continue the property of the plaintiff unless accepted by theydSfiindant. The plaintiff took the risk not only of the safe conveyance of the money to the defendant, but also as to the willingness of the defendant to accept it. The defendant’s letter, not constituting such a note or memorandum of the agreement as the statute required, left it optional with the defendant to accept or refuse part payment when offered to Mm, the same as if the defendant had sent to the plaintiff a verbal communication of the same import as the defendant’s letter. A point is made by counsel as to whether the money was conveyed and delivered or offered to the defendant, within a reasonable time after his letter was received by the plaintiff, but it seems to us that the time the money was offered is not material. We think, even if the plaintiff had gone immediately after receiving the defendant’s letter, and offered and tendered to him the fifty dollars, the defendant would have been under no legal obligation to accept it. The mere offer of the defendant to receive the money would not estop him from refusing to accept it; but in order to take the case out of the operation of the statute, it required the agreement or consent of both parties, as to payment by the plaintiff and acceptance of it by the defendant. Upon the facts of this case, we think the rights of the parties rest upon and are to be determined by the verbal agreement entered into by them on the 30th of June, and that their subsequent attempts to make that agreement a valid contract' can not aid the plaintiff. The statute 'provides that “ no contract for the sale of any goods, wares or merchandize, for the price of forty dollars or more, shall be valid, unless the purchaser shall accept and receive part of the goods so sold, or shall give something in earnest to bind the bargain, or in part payment, or unless some note or .memorandum of the bargain be made in writing, and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized.” * The very language of the statute aboye quoted implies, that in whichever way the parties verbally agree or propose that a contract for the sale of goods, wares or merchandise,'for the price of $40 or more, shall be made exempt from the statute of frauds, [680] whether it be by the purchaser accepting and receiving part of the goods so sold, by giving something in earnest to bind the bargain, or in part payment, or by malting a note or memorandum of the bargain, it must be done, if done at all, by the consent of both parties. It is obvious that it would require the consent of the purchaser to accept and receive part of the goods, and he could not receive them unless by consent of the seller; the purchaser could not give something in earnest to bind the bargain, or in part payment, unless the seller accept and receive it; nor could a note or memorandum of the bargain be made and signed, unless by the consent of the party to be charged thereby. A vand^com tract is an agreement or covenant between two or more persons, in which each party binds himself to do or forbear some act; and each acquires a right to what the other promises ; but if the parties, in making a contract like the present one, omit to do what the statute requires to be done to make a valid contract, it would require the consent of both parties to supply the thing omitted. Suppose it had been one stipulation of the verbal agreement on the 30th of June that the plaintiff should give and the defendant receive something in earnest to bind the bargain, and in pursuance of such stipulation the plaintiff had then offered to give or pay the amount so stipulated, and the defendant had refused to receive it, saying that he preferred not to receive any money until he had delivered the whole or part of the property, or had refused to accept the money so offered, or do any other act to bind the bargain, without giving any reason for such refusal, it would be evident that -he did not intend to make a binding contract. But the fact that he had made such verbal agreement to receive something or to do some other act to bind the bargain, and that the plaintiff was ready and offered to comply on his part, would not take the agreement out of the statute. A verbal stipulation to give and to receive something in earnest to bind the bargain or in part payment, or a verbal promise to make a note or memorandum in writing necessary to exempt the agreement from the operation of the statute, is as much within the statute of frauds as is the agreement or contract taken as a whole; and a note or [681] memorandum in relation to giving something in earnest to bind the bargain, or in part payment, which is insufficient of itself to take the contract out of the statute, is also insufficient to make the contract binding upon either party. The judgment of the county court is reversed and judgment for the defendant for his costs.