Theilen v. Rath

"WnsrsLOW, J. Much space is consumed in the briefs in discussing the question as to when title to the staves passed under the written contract,— whether upon delivery at the depot grounds or upon loading on the cars. As we look at the evidence, this question is not necessary to be decided. The appellant, Rath, himself, testifies that he received and took away 40,671 quarter-barrel staves and 35,698 half-barrel staves under the contract, Eeference to the contract shows that he could claim no more of either kind under it. The contract was filled as to these two kinds of staves, and we are not concerned with the whole-barrel staves, because the plaintiff claims only half and quarter-barrel staves. Defendant tries to escape from the result by claiming that [266] half were culls, but his testimony shows that he voluntarily took them, and never returned them or offered to return them. He is not now in a situation to say that they did not apply on the contract. There was, however, testimony in the case tending to show that in January there was an oral arrangement made between Bath and the Staffords, by which Bath agreed to take and the Staffords to furnish about 25,000 staves outside the written contract, at the same price, provided they could be cut off from a specified piece of land. It is said by respondents that, even if this alleged arrangement be admitted, still it was within the statute of frauds, and void. But it was certainly not within the statute of frauds if a part of them had been actually received and accepted by Bath before the attempted sale to Theilen. The evidence, as printed, is somewhat confused, but it seems to us that there is evidence tending to show that part of the staves claimed to have been sold under this oral arrangement had been taken by Bath and shipped to Ohicago before the sale to Theilen took place. If this be true, this would be a fact which would be evidence of acceptance, and which ought to be submitted to a jury, to decide whether in fact there had been such acceptance of a part of the property covered by the alleged oral sale as would take it out of the statute of frauds. As to what acts might constitute such acceptance, reference is made to the discussion of the subject by Mr. Justice Lxon in Bacon v. Eccles, 43 Wis. 227. If there was an acceptance on the part of Bath which would satisfy the statute and validate the oral contract, then by the same act Bath became possessed of the title, certainly, of those staves which were on the depot grounds and pointed out by Stafford on February 22d. This view of the case necessitates a new trial to determine the questions (1) whether there was a parol contract of sale made in January; (2) whether the staves in question [267] were covered by such parol contract; and (3) Whether there had been such an acceptance of a part of the staves covered by the parol contract as satisfied the statute of frauds and passed the title. By the Court.— The judgment of the circuit court is reversed, and the case remanded for a new trial. Oeton, J., took no part.