Janvrin v. Maxwell

Paine, J. -If the facts as sworn to by the plaintiffs in regard to a delivery and acceptance of the beef are sufficient to take the contract out of the statute of frauds, then, upon the evidence, we should not feel called upon to disturb the findings of the referee. Whether those facts do take the sale out of the statute, is a questiop of considerable interest. I was at first strongly inclined to the opinion that they were not sufficient, and that to hold otherwise would render the. statute in effect inoperative, as' it could be so readily evaded. Parties contract without writing for the sale of goods exceeding fifty dollars in value. There is no payment, and no delivery. The contract is void by the statute. But the vendor says to the vendee, “ I deliver the goods;” and the latter replies, “ I accept them, and desire you to store them for me as my bailee,” and the contract is good! It is evident, that, if the false witness, against whom the statute designed to guard, can avoid its effect by merely adding such a conversation to his alleged contract, its provisions can afford little protection. And this view acquires additional significance when considered in connection with the change of the law of evidence, allowing parties to be witnesses. Yet it is nevertheless true, that, if such a delivery and acceptance are actually made, it satisfies the letter of the statute. And the real question seems to be, whether it is against the policy of the act to allow the vendor to retain possession as the bailee of the purchaser after such delivery. If it is, then the contract was void by the statute. If not, then it was valid. In Menzies v. Dodd, 19 Wis. 343, this court held, that an [54] actual change of possession was necessary in cases falling within the fifth section of chapter 107 R. S. Rut that was in cases where the controversy arose between the first purchaser and some subsequent purchaser or creditor of the vendor. And the court say there is a distinction between such cases and one where the question arises merely between the vendor and the vendee, implying that in the latter the vendor might by agreement become the bailee of the vendee. I shall not attempt any extended review of the authorities. Rut in the following English cases the precise point under consideration has been thoroughly discussed; and they fully sustain the conclusion that there is nothing in the statute that prevents the vendor from becoming the bailee of the purchaser if the parties so agree. And this being so, it becomes then merely a question upon the evidence, whether there was a delivery, an acceptance and a bailment. Beaumont v. Brengeri, 57 E. C. L. 301; Marvin v. Wallis, 88 id. 726; Castle v. Sworder, 6 Hurl. & Nor. 828. Talcing the evidence of the plaintiff as true, there is no question in this case as to the identity of the property, or as to the intent of the parties, on the one side to deliver and on the other to accept, and to change the character in which the vendors should afterward hold it, from that of owners to that of bailees for the defendants. The defendants said they would take the property, and requested the plaintiffs to roll it into the back part of the shop and store it for them, and sell it for them if they had an opportunity; and they subsequently, on being requested by the plaintiffs, promised to send a team and take it away. The purchaser, therefore, gave directions for a specific disposal of the property, thus assuming its control; and their directions were followed by the plaintiffs. Applying to these facts the' law established by the cases above cited, I think the judgment should be affirmed. By the Oourt. — Judgment affirmed.