Burrell v. Highleyman

Rombatter, P. J., delivered the opinion of the court. The question of law arising upon this appeal will sufficiently appear by the plaintiff’s statement filed herein, a brief summary of the plaintiff’s and defendant’s evidence, and the declaration of law made by the court, it being conceded that the statute of frauds was interposed as a defense to the action. — 186 — The statement of the cause of action, filed before the justice, is as follows: “Plaintiffs state that at the time of the transactions hereinafter set forth, they were co-partners, trading under the name of Burrell, Com-stock & Co., and for their cause of action herein plaintiffs say, that in or about the month of April, 1883, the defendant requested plaintiffs, who were then and there manufacturers and dealers in furniture, to manufacture for him the. following furniture, to-wit: One mahogany parlor sofa, one mahogany easy chair, one mahogany small chair, and agreed to pay plaintiffs therefor the sum of two hundred (200) dollars, and that plaintiffs accepted said order. That immediately after said order was given to plaintiffs, they manufactured said furniture, as they had agreed to do, and then and there offered to deliver said furniture to the defendant, but the defendant then and there refused to accept or receive the same. Plaintiffs further say that, by reason of the failure and refusal of defendant to receive and pay for said furniture according to his contract, they have been damaged in the sum of one hundred (100) dollars, for which they claim judgment.” The plaintiffs, subject to the objection of the statute cf frauds, gave evidence tending to show that they were manufacturers and dealers in furniture ; that the defendant called at their place of business and ordered a parlor set, consisting of a sofa, an arm-chair, and ladies’ chair, for two hundred dollars; that this furniture was complete at the time, with the exception of the covering and trimming; that it is kept in stock in that shape, for inspection, and covered and trimmed according to order of purchasers; that the defendant-selected the covering and trimming, which was worth about one hundred dollars, or half the price of the finished furniture, and thereupon left. No memorandum of the transaction was made, nor was any earnest-money paid. The- furniture was completed before the defendant — 187 — revoked his order. The defendant refused to take the goods when completed. The defendant gave evidence tending to show that he gave the -order as stated by plaintiffs, with the proviso that, as he would not need the furniture for a couple of weeks, plaintiffs need not keep it for him, but should sell it if anybody else wanted it. The same evening, or the next day, the defendant becoming dissatisfied with his bargain, wrote to plaintiffs that he would not take the furniture. The court thereupon made the following declaration of law: “If the court finds, from the evidence, that the contract in question was intended by both parties as a sale of the goods in question, for a price of two hundred dollars, to be hereafter delivered, and that no earnest-money was paid and no part of the goods accepted, and the contract not in writing, then, under Revised Statutes, section 2514, invoked by the defendant herein, the finding must be for the defendant.” And having thus declared the applicatory law, rendered a judgment in favor of the defendant. It has been a mooted question, both in England and here, what contracts of this kind should be considered contracts for work, and as such not within the statute, or else contracts for the sale of goods or chattels, and as such within it. Perhaps no subject in the law has been more refined upon, with results less satisfactory. As courts in former times did not view the statute with great favor, most of the earlier decisions were departures from its literal construction. A distinction! was made between chattels completed at the date of the];’ agreement, and those to be completed, between incom- • pleted chattels on which the work was subsequently j done for the vendor’s benefit, and those on which the work was done for the vendee’s benefit; between cases where the material formed the main value and those where the work formed the main value. Courts in — 188 — various jurisdictions held that the former class was within the statute, and the latter was not, but courts in the various jurisdictions putting their rulings on almost as many different propositions as the case in its nature would admit of. Perhaps no better illustration can be furnished of the unsatisfactory results that necessarily arise from an attempted discrimination of cases wherein the ultimate object of the contract is the delivery of the chattel, than the fact that the rule laid down by one of the greatest jurists of the land, is, as a rule of general application, far from satisfactory. “ When the contract is a contract of sale,” says Chief Justice Shaw, in Mixer v. Howarth, 21 Pick. 205, “either of an article then existing, or of articles which the vendor usually has for sale in the course of his business, the statute applies to the contract, as well where it is to be executed at a future time, as where it is to be executed immediately. But where it is an agreement with a workman, to put materials together and construct an article for the employer, whether at an agreed price or not, though in common parlance it may be called a purchase and sale of the article, to be completed in futuro, it is not a sale until an actual or constructive delivery and acceptr anee, and the remedy for not accepting is on the agreement.” The elements of uncertainty introduced into this definition are, “ articles which the vendor usually has for sale” in the first sentence, and “putting materials together and constructing an article ” in the second part, which is used without qualification, and applicable alike to articles which the vendor usually has for sale, and to such as he has not. Thus it came that in that case the sale of a buggy completed to order was held not to be within the statute of frauds, although the vendor was a dealer in buggies and had them usually for sale, while in the subsequent case of Clark v. Nichols, 107 Mass. 547, the sale of plank, to be sawed — 189 — thereafter to certain specified dimensions according to the vendee’s order, was held to be a sale, and as such within the statute of frauds. It was.not until 1861 that the decision in Lee v. Griffin, 1 B. & S. 272, set the mooted question finally at rest in England, by the very simple definition that, “when the subject-matter of the contract is a chattel to be afterwards delivered, then the cause of action is goods sold and delivered, and the seller cannot sue for work and labor.” This statement of the rule, which is nothing else but a statement that the proper way to construe the statute is to construe it according to its literal meaning, at once met the approbation of the courts there, and has since been the settled construction in England. The case has been cited with approval by the supreme court of New Hampshire in Prescott v. Locke, 51 N. H. 94, while the courts of some of the other states, without occupying quite as advanced ground, were unquestionably drifting in the same direction. Burt v. Bailey, 21 Minn. 403; Atwater v. Hough, 29 Conn. 508. The courts of New York were atan early date committed to a more liberal construction of the statute, mainly on the strength of earlier English decisions (Crookshank v. Burrell, 18 Johns. 58), yet after the decision in Lee v. Griffin, supra, did not hesitate to give sanction to the rule then laid down as far as compatible with their former holding. Thus in Cooke v. Millard, 65 N. Y. 360, that court said: “Were this subject now open to full discussion upon principle, no more convenient and easily understood rule could be adopted than that enunciated in Lee v. Griffin. It is at once so philosophical, and so readily comprehensible, that it is a matter of surprise that it should have been first announced at so late a stage in the discussion of the statute. It is too late to adopt it in full in this state. So'far as authoritative decisions have gone, they must — 190 — be respected, even at the expense of sound principle. The court, however, in view of the present state of the law, should plant itself, so far as it is not precluded from doing so by authority, upon some clearly intelligible ground, and introduce no more nice and perplexing distinctions.” The question has never received diréct adjudication from any court of final judicature in this state. In Wharton v. Missouri Car Foundry Co., 1 Mo. App. 577, 581, Judge Bakewell intimates that “a contract for goods to be manufactured, blending prices and compensation for work, skill and material, so that they cannot be discriminated ”(sic) is not within the statute, but the remark was oMter, as the contract in that case was in writing. As far as the courts of this state . are committed at all, they are committed to a strict construction of the statute. Delventhal v. Jones, 53 Mo. 460. Such being the state of the law here leaves us at liberty to adopt, among the many conflicting constructions placed upon that part of the statute by other courts, the one which makes its meaning the clearest, is most in consonance with its letter, and is likely to lead to the least complications, and we do not hesitate to say that-that construction is the one adopted in Lee v. Griffin. It is essential that the laws of every people, and above all those of a free people whose only sovereign is the law, should be written in plain and unambiguous characters, so that he who runs may read. If this be true in every case, it is all important in questions of universal and daily occurrence, such as sales. No law which is not certain can be just. It has been suggested that, as the statute originated in England, we should adopt that interpretation of the section which the highest judicial tribunals of that country have given to it. It is said in Skouten v. Wood, 57 Mo. 382, that the construction of an act given to ifrby — 191 — a state or country where it originated would be very persuasive if not conclusive that our legislature, in adopting it, meant to adopt it as construed by the judicial authorities of that state or country. That rule, as there stated, is founded on the presumption that the judicial branch of the government where the statute originates is the most competent to determine its meaning and effect. It seems to result from this that the rule can be of value only when the construction put upon the statute in that jurisdiction has been uniform. If it is to be presumed that the judiciary of England is most competent to determine the meaning and effect of this statute, because it originated there, it cannot be further presumed that it is less competent to do so at one time than at another. As the true construction of this particular section of the statuta by the English courts, either prior or subsequent to its adoption in this state, was anything but uniform, until the decision in Lee v. Griffin, there is no sound reason why any of the various other constructions adopted by the courts of England should be adopted in preference to the final and now well-settled rule adopted in Lee v. Griffin. The section of the statute of frauds which is under consideration establishes a rule of evidence and not a rule of property. The statute itself is one of public policy. All considerations of an equitable nature are therefore to be disregarded. No vested rights can be disturbed by the adoption of any construction. We have seen proper to discuss the subject thus fully, more on account of our desire to furnish some intelligent rule for the guidance of trial courts, than on account of the case at .bar, as the judgment herein might have been affirmed on much narrower grounds. The plaintiff is a dealer in the goods. The work to be done to finish them was inconsiderable, in fact nominal, and that work,- as stated in the identical case of Flint v. Corbitt, 6 Daily, 430, was done for the benefit of the — 192 — vendor. There was therefore substantial evidence tending to show that both parties intended the contract to be a contract of sale. That intention the court submitted to itself as a question of fact and whether its finding thereon adversely to plaintiff is assignable for error at all, may be well doubted. In the views herein expressed Judge Peers concurs, and with his concurrence the judgment is affirmed. Judge Thompson dissents.