Frank v. Murray

The facts appear in the opinion. McLeary, J. This action was brought by Frank against Murray on a verbal contract, and on a trial before a jury a verdict was rendered in favor of the plaintiff and a motion for a new trial was overruled; and from this judgment and ruling the defendant appealed. The evidence shows that the defendant went to the store of the plaintiff, and left with a clerk, for him, the following message : “ Tell Frank that if he will buy the Green Room property in, and let Osborne ha\re it, I will pay him five hundred dollars when I return on Saturday.” Frank had a chattel mortgage on the property for $900 or $1,000. Osborne wished to purchase it at the sheriffs sale, but was unable to do so. He went with defendant, Murray, to Frank’s store, when this message was left for plaintiff. Next day, at the sheriff’s sale, Frank, the mortgagee, bought the property at a bid of $600, and sold it to Osborne for $1,000; taking his note and a chattel mortgage on the property for $500, and relying on Murray’s verbal agreement for the $500 which he had agreed to pay. Murray refused to pay, and hence this action was begun. 1. The first error assigned is as to the admission of the testimony of the witness Frank, to testify what Tuohy (the clerk with whom the message was left) told him that Murray had said. This specification of error was not noticed in the brief or oral argument of counsel, [10] and may be considered as abandoned. The testimony was certainly competent, and does not fall within the rules in regard to hearsay testimony. 2. The next alleged error is the overruling of the defendant’s demurrer to the complaint. The grounds of the demurrer were that the complaint showed that this was a verbal contract, and that it was within the statute of frauds, being a contract for the sale of goods for a greater price than $200; and that the complaint does not allege the time and place of the alleged demand upon the appellant for payment. First. Is the contract within the statute of frauds? Our statute reads as follows: “ Every contract for the sale of any goods, chattels, or things in action, for the price of two hundred dollars and over, shall be void, unless (1) anote or memorandum of such contract be made in writing, and be subscribed by the parties to be charged therewith; or (2) unless they shall accept or receive a part of such goods, or the evidences, or some of them, of such things in action; (3) or unless the buyer shall at the time pay some part of the purchase money. Rev. St. Mont. p. 436, § 167, div. 5. This was not a contract for the sale of goods. The property did not belong to Frank at the time of the contract, and he did not pretend to make a sale of it. Murray wished Frank to become the purchaser of these goods at the sheriff’s sale, and so to arrange matters as to make Osborne the owner. It does not appear what object Murray had in bringing about these events. But it clearly appears from the evidence that Frank accepted the verbal proposition contained in the message left for him by the appellant, and did the very acts for -which Murray offered to pay him the $500. It matters not that among other things was included a sale or transfer of property by plaintiff to a third person. This fact does not bring the transaction within the [11] meaning of the statute. This ground of demurrer is not well taken. Second. The demand is sufficiently alleged in the complaint, which says “ that, at various times before the commencement of this suit, plaintiff demanded of said defendant the said sum of five hundred dollars.” The time and place of the demand, as in case of commercial paper, is not necessary to be alleged. 3. The verdict of the jury is sustained by the evidence. The verbal contract fairly meant that defendant agreed that plaintiff might bid in the property at the sale at any price he pleased, and then sell it to Osborne at any price which Osborne was willing to pay, and secure himself as might be agreed upon, and that thereupon the defendant would pay him (plaintiff) $500. To make this verbal contract mean anything else, words would have to be inserted which the evidence does not warrant. As to any conflict in the evidence, we regard that as settled by the verdict of the jury, and must adopt that view of the evidence which accords with the verdict. 4. The instructions given by the court to the jury fairly and plainly set out the law governing this case as presented in the evidence, and there was no error in giving them. The view taken by the defendant's counsel of the evidence, and on which he bases his objection to these instructions, was not adopted by the jury in exercising their privilege of weighing the testimony; but in any event, when there is a conflict, the verdict and judgment would not be disturbed. And, in like manner, the charges, being applicable to the testimony in the view of it which we regard as correct, will not be held erroneous. There being no error in the judgment, and the motion for a new trial having been correctly overruled, this judgment is affirmed, with costs. Judgment affirmed. McConnell, C. J., and Bach, J., concur.