The appellants contend that this ordinance would be valid if it were a state rather than a municipal law. It is then contended that municipal laws are valid unless they conflict with general laws; that this ordinance does not conflict with the general laws because the state has not occupied this field; that it does not directly conflict with nor duplicate any state statute since it prohibits only such closed shop agreements as are neither prohibited nor authorized by state laws; and that it does not conflict with the provisions of the Labor Code since the Supreme Court has held Shafer v. Registered Pharmacists Union and other cases that those sections do not outlaw closed shop agreements. It is further contended that the federal law does not apply to this action since there is no affirmative showing that interstate commerce is affected; and that even if the federal law did apply the ordinance is valid since section 14(b) of the Labor Management Relations Act makes the provisions of that Act inapplicable in any state or territory in which an agreement requiring membership in a labor organization is prohibited by state or territorial law. In that connection it is argued that by enacting section 14(b) Congress intended that municipalities should be allowed to enact right to work laws, and that city ordinances are 'state laws' within the meaning of section 14(b). It is further argued that even if this ordinance is invalid insofar as it applies to interstate commerce it is still valid to the extent that it applies to intrastate commerce.
For related case law see Miller v. Lawlor;Promissory Estoppel; and Friedman v. Tappan Development Corp.
Showing posts with label case law. Show all posts
Showing posts with label case law. Show all posts
Friday, November 14, 2008
Wednesday, November 12, 2008
Statute of Frauds
The statute of frauds is a legal doctrine that requires that certain types of contracts be reduced to a writing in order to be enforceable. While the statute of frauds varies from one jurisdiction to another, in general it requires that the following types of contracts must be in writing and signed by the party against whom the contract is asserted in order to be enforceable: contracts which cannot be performed in one year, contracts involving real property, contracts involving a promise by the executor of a will to pay debts of an estate out-of-pocket, contracts for the sale of goods above a certain minimum value, and contracts wherein a party guarantees the debt of obligation of another party.
A statute of frauds defense is an affirmative defense and will be waived if not asserted in a timely fashion. In some cases a contract that would otherwise be void for meeting one of the above criteria will be held enforceable. If a party takes action in reliance on the contract, part performance can take the contract out of the statute of frauds and render it enforceable. If a party relies to his detriment on a promise that would ordinarily be void under the statute of frauds, a showing of promissory estoppel can render the contract enforceable.
The following are some cases and articles that include issues related to the statute of frauds.
In Big G Corp. v. Henry, in the original trial court action which gave rise to the appeal, the plaintiff had made the argument that the admission of certain testimony offered by the defendant violated both the parol evidence rule and the Statute of Frauds. Defendants had premised their waiver claim on a promissory estoppel argument. The court decided to admit the evidence and issued a special instruction to the jury to determine whether or not the parties had made an oral agreement such that the plaintiff would receive the title to the property in satisfaction of the debts of the defendant. The jury returned a verdict and decided that the side deal had in fact taken place and gave the verdict in favor of the defendant.
Boone v. Coe was a case in which a party tried to sue the other for damages because that party would not complete a real estate transaction. The contract fell within the statute of frauds and the court held that the plaintiff had not rendered part performance and had not relied on the promise to his detriment. The contract was therefore invalid.
In Borchardt v. Kulick the defendant contended that the oral contract fell under the scope of authority of the statute of frauds and that the trial court below was incorrect in failing to grant her a directed verdict. However, the defendant had not made any objection to the introduction of evidence of an oral contract at commencement of the trial and in fact there had been no mention of the statute of frauds. The defendant also had not made any motion to dismiss or for a directed verdict until after the plaintiff had rested its case.
In Chomicky v. Buttolph, the court was faced with the decision of whether an admission to the existence of an oral contract for the sale of certain real property can remove the contract from the Statute of Frauds. The court held that it could not. The party can admit making the oral promise and still be able to raise the defense that the contract is void under the statute of frauds. The court held that only part performance could remove it and mere preparation for purchase was not sufficient.
Another employment contract that involved an issue related to the statute of frauds was Crabtree v. Elizabeth Arden Sales Corporation. In that case the plaintiff was hired for a two year period but the agreement was never placed into a single writing. There were however several documents which, if taken together, would have met all of the requirements of a contract. The issue was whether or not the agreement had to be embodied in a single document or could be pieced together from several.
The court held that he court held that the writings combined contained all of the essential terms of the contract - the parties to it, the position that P was to assume, and the salary that he was to receive - except a term relating to the duration of P’s employment. The contract was held to be enforceable.
In Davis v. Meyer, the court articulated the rule that an oral sales contract that is not placed in writing and where none of the price has been paid is invalid unless the buyer accepts and receives part of the object being sold. It is not sufficient for the seller merely to deliver the object. There must be receipt and voluntary and unconditional acceptance by the buyer. If there is a contract for the sale of goods, and the object hasn’t been paid for, and the object hasn’t been received by the buyer, the contract is void.
DF Activities Corp. v. Brown was a case that related to the requirement that contracts for the sale of goods above a certain value be placed in writing. In that case the parties made an oral agreement to purchase a chair for $60,000. The seller denied making the promise. The court held that if the defendant denies making the oral promise, the plaintiff cannot pursue the case on the hope that evidence of the oral contract will arise during discovery.
In Easton v. Wycoff, the court held that the doctrine of estoppel which relates to a misrepresentation made regarding a past or present fact might be invoked in that case to preclude the respondent from asserting his lack of title to the property if the elements of estoppel were shown. For this case however the court noted that it could view the respondent as the owner in fact of the property and therefore had to deal with the more complex issue of whether the appellant was legally entitled to enforce or sue upon the contract.
In Johnson v. Lewis, the court held that an easement is a liberty, privilege, or advantage which a party may have in the real property of another without profit and it must be under a deed or via prescription. The court held that although the grant of an easement is ordinarily subject to the statute of frauds and must be in writing, a parol grant that has been executed will be upheld just as a parol contract for the sale of lands would be. The court did not agree that the plaintiffs' complaint sufficiently defined such a right of way as would eventually ripen into a vested right.
Ludke Elec. Co. v. Vicksburg Towing Co. involved a suit filed by the Ludke Electric Company in the County Court of Warren County against the Vicksburg Towing Company. The plaintiff sought $1,421.35 alleged to be due it because of an order placed by the Vicksburg Towing Company for certain parts of a pneumatic propulsion control. The court heard the issue joined on the statute of frauds and entered judgment for the defendant towing company.
A case that involved the statute of frauds in the context of an employment contract was McIntosh v. Murphy. In that case the defendant made an oral promise to hire the plaintiff for a year to work in his car dealership in Hawaii. The plaintiff sued when he was fired two months later. In that case the court held that an oral promise is enforceable if the promissor should reasonably expect it to induce either action or forbearance by the other party. If the party to whom the promise was made took steps in relying on that promise, the promise was removed from the statute of frauds.
In Miller v. Lawlor, the court stated that the question in cases involving the statute of frauds is not which party will suffer the greater detriment if the other party wins. The rule for promissory estoppel is that it arises when an innocent promisee relies to his disadvantage on a promise that was intended or reasonably calculated to induce action by him.
When such cases arise, equity is first concerned with the innocent promisee if the promissor were to be allowed protection under the statute of frauds. The court held that in this case the record showed that the plaintiffs bought the Vander Wal home on the strength of the defendant's promise as to how he would build. If the defendant were to build as he threatened later, a real value would be subtracted from plaintiff's premises. The court held that in light of this the plaintiff won.
Mossman v. Hawaiian Trust Co. involved a case in which in a suit seeking specific performance brought by a husband and wife alleging a gift or real property by decedent to them, the defendant executor pleaded the Statute of Frauds. The issue for the court to resolve in that case was whether there was any written memorandum in writing. The defendant elicited testimony from the husband that the alleged donor wrote a letter to his wife which could not be found but which may have been a memorandum sufficient to satisfy the Statute of Frauds.
In Piedmont Life Ins. Co. v. Bell, the defendant filed his answer together with both general and special demurrers. The substance of the demurrers was that the petition did not state a cause of action upon which relief could be granted. The defendant contended that the contract as alleged was required to be in writing under the statute of frauds and was therefore void. The defendant also alleged that the action was barred by the statute of limitations or that regarding any breaches occurring four years or more before the plaintiff filed his complaint, any claims filed with respect to those breaches would also be barred by the statute of limitations.
One case that demonstrated the meaning of “within one year” in terms of contracts that exceed one year being held unenforceable was Professional Bull Riders, Inc. v. AutoZone, Inc. In that case one party promised to sponsor another for two years, but the agreement also contained a clause that allowed the party to withdraw from the contract at any time. The court held that since the party could withdraw at any time the contract could be performed within one year and it was therefore enforceable.
In Radke v. Brenon, the court specified precisely what must be included in a writing in order for it to not fall under the statute of frauds. The court held that a writing for the sale of land must contain at least an express statement of consideration, a description of the land to be conveyed, which must be signed by the party to be bound, and the identities of the parties to the contract. In that case the court held that all of these elements were clearly present in the letter written by the defendant and the court ruled in favor of the plaintiff that the contract was valid.
Sullivan v. Porter was an example of the statute of frauds at work in a real estate transaction. In this case the plaintiff had moved onto the land and made improvements on it after the defendant assured him that he would prepare the paperwork to complete the transaction. The court held that this contract was valid. The defendant’s actions induced part performance by the plaintiff and the plaintiff won.
In Winternitz v. Summit Hills Joint Venture, the issue was whether a contract affecting third parties who were not parties to the contract would be enforceable. In that case the court held that contracts that affect third parties are not within the statute of frauds and can be enforced insofar as it affects such parties.
A statute of frauds defense is an affirmative defense and will be waived if not asserted in a timely fashion. In some cases a contract that would otherwise be void for meeting one of the above criteria will be held enforceable. If a party takes action in reliance on the contract, part performance can take the contract out of the statute of frauds and render it enforceable. If a party relies to his detriment on a promise that would ordinarily be void under the statute of frauds, a showing of promissory estoppel can render the contract enforceable.
The following are some cases and articles that include issues related to the statute of frauds.
In Big G Corp. v. Henry, in the original trial court action which gave rise to the appeal, the plaintiff had made the argument that the admission of certain testimony offered by the defendant violated both the parol evidence rule and the Statute of Frauds. Defendants had premised their waiver claim on a promissory estoppel argument. The court decided to admit the evidence and issued a special instruction to the jury to determine whether or not the parties had made an oral agreement such that the plaintiff would receive the title to the property in satisfaction of the debts of the defendant. The jury returned a verdict and decided that the side deal had in fact taken place and gave the verdict in favor of the defendant.
Boone v. Coe was a case in which a party tried to sue the other for damages because that party would not complete a real estate transaction. The contract fell within the statute of frauds and the court held that the plaintiff had not rendered part performance and had not relied on the promise to his detriment. The contract was therefore invalid.
In Borchardt v. Kulick the defendant contended that the oral contract fell under the scope of authority of the statute of frauds and that the trial court below was incorrect in failing to grant her a directed verdict. However, the defendant had not made any objection to the introduction of evidence of an oral contract at commencement of the trial and in fact there had been no mention of the statute of frauds. The defendant also had not made any motion to dismiss or for a directed verdict until after the plaintiff had rested its case.
In Chomicky v. Buttolph, the court was faced with the decision of whether an admission to the existence of an oral contract for the sale of certain real property can remove the contract from the Statute of Frauds. The court held that it could not. The party can admit making the oral promise and still be able to raise the defense that the contract is void under the statute of frauds. The court held that only part performance could remove it and mere preparation for purchase was not sufficient.
Another employment contract that involved an issue related to the statute of frauds was Crabtree v. Elizabeth Arden Sales Corporation. In that case the plaintiff was hired for a two year period but the agreement was never placed into a single writing. There were however several documents which, if taken together, would have met all of the requirements of a contract. The issue was whether or not the agreement had to be embodied in a single document or could be pieced together from several.
The court held that he court held that the writings combined contained all of the essential terms of the contract - the parties to it, the position that P was to assume, and the salary that he was to receive - except a term relating to the duration of P’s employment. The contract was held to be enforceable.
In Davis v. Meyer, the court articulated the rule that an oral sales contract that is not placed in writing and where none of the price has been paid is invalid unless the buyer accepts and receives part of the object being sold. It is not sufficient for the seller merely to deliver the object. There must be receipt and voluntary and unconditional acceptance by the buyer. If there is a contract for the sale of goods, and the object hasn’t been paid for, and the object hasn’t been received by the buyer, the contract is void.
DF Activities Corp. v. Brown was a case that related to the requirement that contracts for the sale of goods above a certain value be placed in writing. In that case the parties made an oral agreement to purchase a chair for $60,000. The seller denied making the promise. The court held that if the defendant denies making the oral promise, the plaintiff cannot pursue the case on the hope that evidence of the oral contract will arise during discovery.
In Easton v. Wycoff, the court held that the doctrine of estoppel which relates to a misrepresentation made regarding a past or present fact might be invoked in that case to preclude the respondent from asserting his lack of title to the property if the elements of estoppel were shown. For this case however the court noted that it could view the respondent as the owner in fact of the property and therefore had to deal with the more complex issue of whether the appellant was legally entitled to enforce or sue upon the contract.
In Johnson v. Lewis, the court held that an easement is a liberty, privilege, or advantage which a party may have in the real property of another without profit and it must be under a deed or via prescription. The court held that although the grant of an easement is ordinarily subject to the statute of frauds and must be in writing, a parol grant that has been executed will be upheld just as a parol contract for the sale of lands would be. The court did not agree that the plaintiffs' complaint sufficiently defined such a right of way as would eventually ripen into a vested right.
Ludke Elec. Co. v. Vicksburg Towing Co. involved a suit filed by the Ludke Electric Company in the County Court of Warren County against the Vicksburg Towing Company. The plaintiff sought $1,421.35 alleged to be due it because of an order placed by the Vicksburg Towing Company for certain parts of a pneumatic propulsion control. The court heard the issue joined on the statute of frauds and entered judgment for the defendant towing company.
A case that involved the statute of frauds in the context of an employment contract was McIntosh v. Murphy. In that case the defendant made an oral promise to hire the plaintiff for a year to work in his car dealership in Hawaii. The plaintiff sued when he was fired two months later. In that case the court held that an oral promise is enforceable if the promissor should reasonably expect it to induce either action or forbearance by the other party. If the party to whom the promise was made took steps in relying on that promise, the promise was removed from the statute of frauds.
In Miller v. Lawlor, the court stated that the question in cases involving the statute of frauds is not which party will suffer the greater detriment if the other party wins. The rule for promissory estoppel is that it arises when an innocent promisee relies to his disadvantage on a promise that was intended or reasonably calculated to induce action by him.
When such cases arise, equity is first concerned with the innocent promisee if the promissor were to be allowed protection under the statute of frauds. The court held that in this case the record showed that the plaintiffs bought the Vander Wal home on the strength of the defendant's promise as to how he would build. If the defendant were to build as he threatened later, a real value would be subtracted from plaintiff's premises. The court held that in light of this the plaintiff won.
Mossman v. Hawaiian Trust Co. involved a case in which in a suit seeking specific performance brought by a husband and wife alleging a gift or real property by decedent to them, the defendant executor pleaded the Statute of Frauds. The issue for the court to resolve in that case was whether there was any written memorandum in writing. The defendant elicited testimony from the husband that the alleged donor wrote a letter to his wife which could not be found but which may have been a memorandum sufficient to satisfy the Statute of Frauds.
In Piedmont Life Ins. Co. v. Bell, the defendant filed his answer together with both general and special demurrers. The substance of the demurrers was that the petition did not state a cause of action upon which relief could be granted. The defendant contended that the contract as alleged was required to be in writing under the statute of frauds and was therefore void. The defendant also alleged that the action was barred by the statute of limitations or that regarding any breaches occurring four years or more before the plaintiff filed his complaint, any claims filed with respect to those breaches would also be barred by the statute of limitations.
One case that demonstrated the meaning of “within one year” in terms of contracts that exceed one year being held unenforceable was Professional Bull Riders, Inc. v. AutoZone, Inc. In that case one party promised to sponsor another for two years, but the agreement also contained a clause that allowed the party to withdraw from the contract at any time. The court held that since the party could withdraw at any time the contract could be performed within one year and it was therefore enforceable.
In Radke v. Brenon, the court specified precisely what must be included in a writing in order for it to not fall under the statute of frauds. The court held that a writing for the sale of land must contain at least an express statement of consideration, a description of the land to be conveyed, which must be signed by the party to be bound, and the identities of the parties to the contract. In that case the court held that all of these elements were clearly present in the letter written by the defendant and the court ruled in favor of the plaintiff that the contract was valid.
Sullivan v. Porter was an example of the statute of frauds at work in a real estate transaction. In this case the plaintiff had moved onto the land and made improvements on it after the defendant assured him that he would prepare the paperwork to complete the transaction. The court held that this contract was valid. The defendant’s actions induced part performance by the plaintiff and the plaintiff won.
In Winternitz v. Summit Hills Joint Venture, the issue was whether a contract affecting third parties who were not parties to the contract would be enforceable. In that case the court held that contracts that affect third parties are not within the statute of frauds and can be enforced insofar as it affects such parties.
Monday, November 3, 2008
Davis v. Meyer
Davis v. Meyer, 1 S.W. 95 (Ark., 1886)
Action for conversion of goods claimed by appellants under a chattel mortgage, and claimed by appellees under a prior purchase from the mortgagor. Judgment for plaintiffs, and appeal therefrom by defendants.
Frank Tomlinson, a merchant of Pine Bluff, was indebted to both parties to this action. On the twentieth of October, 1883, he sold to Gabe Meyer & Co. a bill of merchandise, amounting to $140.15, and consisting of dry goods, tobacco, and two guns. The dry goods, which were of the value of $101.77, were packed in a box, and placed under the counter. The tobacco and guns were not separated from the rest of Tomlinson's stock. No money was paid, it being understood that the amount of the bill was to go as a credit on the debt due the purchasers, and the items were charged on the debtor's books, Meyer & Co. being furnished with a bill of parcels. Tomlinson was directed to send the goods to a certain warehouse in the town. Afterwards, on the same day, and before the goods were removed from the store, Tomlinson executed a mortgage upon the entire stock of merchandise in his store to Davis, Mallory & Co. as security for the debt he owed them, and placed them in immediate possession. They had no knowledge of the previous sale to Meyer & Co., and, when informed of it, refused to recognize the transaction, or surrender the goods to Meyer & Co., but took the goods out of the box, which had never been nailed up or closed in any manner, replaced them upon the shelves among the general stock, and sold them under their mortgage. Meyer & Co. now brought suit for the conversion of the goods; and upon a trial without a jury the circuit court held that they were entitled to recover the value of the goods that had been separated from the remainder of the stock, but not the value of the tobacco and guns, and gave judgment accordingly. Davis, Mallory & Co. have appealed.
It is superfluous to inquire whether the effect of this transaction was to transfer to Meyer & Co. the title or property in the goods, as against Tomlinson, so as to enable them to maintain replevin if he had withheld them, or to throw upon him the loss if the goods had been destroyed by fire; for as we understand the law, in order to make the sale effectual against subsequent purchasers or attaching creditors, there must have been an actual delivery,— a visible and substantial change in the possession. These goods were not ponderous nor bulky, but could have been easily delivered. See Ferguson v. Northern Bank of Ky.
We attach no importance to the fact that Tomlinson furnished to Meyer & Co. a bill of parcels. This was like a bill of sale, and insufficient evidence of a completed sale, unless accompanied by actual possession of the things sold. See Dempsey v. Gardner; McKee v. Garcelon; and Solomons v. Chesley. The only circumstance tending, even remotely, to show that Tomlinson had parted with his control of the goods, was that he had segregated a portion of them from the remainder of his stock, had boxed them up, and set them aside. This was evidence of his intention to select and appropriate them to the use of the plaintiffs. But it is not shown that the plaintiffs were even present, in person or by agent, when this was done. The box was not nailed or closed. Neither it nor the goods were marked with the plaintiffs' name or initials. The plaintiffs did not take charge of the package; nor were they to send and get the goods, but Tomlinson was to convey them to the warehouse. The plaintiffs, therefore, had no possession; and, before anything further was done, Tomlinson resold the same goods to the defendants, who had no notice of the prior sale, and who took possession. The defendants thereby obtained the better title. Crawford v. Forristall; Allen v. Carr; Veazie v. Somerby; and Garman v. Cooper.
Reversed, and remanded for further proceedings.
NOTE.
An oral contract of sale, where no part of the price is paid, is invalid, unless the buyer accepts and receives part of the thing sold; a delivery alone by the vendor is not sufficient, but there must be a receipt and acceptance by the vendee, and the acceptance must be voluntary and unconditional. See Jamison v. Simon.
A sale of chattels, where the price is not paid, and the goods are not actually delivered, in the absence of a written contract, is within the statute of frauds, and void as to creditors. See Hickok v. Buell.
But an oral contract may be taken out of the statute by a written admission in a letter to a third person. See Warfield v. Wisconsin Cranberry Co.
Where the contract for the sale of goods is oral, and no part of the price is paid, there must be not only a delivery of the goods by the vendor, but a receipt and acceptance of them by the vendee, to pass the title, or make the vendee liable for the price. See Ex parte Parker.
If, after the contract was made, the defendant takes possession of the property, (wood,) and has it repiled, this is sufficient to take it out of the statute of frauds. See Richards v. Burroughs.
And under a statute of Iowa, providing that no evidence of any contract for the sale of personal property is competent when no part of the property is delivered, and no part of the price paid, it was held that a delivery of the goods by the vendor to a common carrier is a delivery to the vendee sufficient to take the contract out of the statute of frauds. See Bullock v. Tschergi.
It is held that to constitute a delivery the goods must be set apart, Galloway v. Weck; Hoffman v. King; Carpenter v. Graham; and Galloway v. Week.
Appropriation of goods is acceptance thereof. See Wellauer v. Fellows.
Where there is a verbal order for several articles, the acceptance of a part of them, though shipped at different times from the others, will make the entire contract valid. See Farmer v. Gray.
Where a part only of the goods sold is separated from the bulk, there is no delivery of any except that part actually separated. See Holmes v. Bailey.
But it has been held that the pointing out of hogs sold, which were then accepted, although permitted to remain among and be fed with other hogs in the same drove, is a valid delivery. See Webster v. Anderson.
It is the fact of delivery under and in pursuance of the agreement of sale, not the time when delivery is made, that the statute of frauds renders essential to the proof of a valid contract. So that a delivery at a future day is sufficient if made in pursuance of the contract; and, upon the same principle, the place of delivery can make no difference. See Somers v. McLaughlin.
Action for conversion of goods claimed by appellants under a chattel mortgage, and claimed by appellees under a prior purchase from the mortgagor. Judgment for plaintiffs, and appeal therefrom by defendants.
Frank Tomlinson, a merchant of Pine Bluff, was indebted to both parties to this action. On the twentieth of October, 1883, he sold to Gabe Meyer & Co. a bill of merchandise, amounting to $140.15, and consisting of dry goods, tobacco, and two guns. The dry goods, which were of the value of $101.77, were packed in a box, and placed under the counter. The tobacco and guns were not separated from the rest of Tomlinson's stock. No money was paid, it being understood that the amount of the bill was to go as a credit on the debt due the purchasers, and the items were charged on the debtor's books, Meyer & Co. being furnished with a bill of parcels. Tomlinson was directed to send the goods to a certain warehouse in the town. Afterwards, on the same day, and before the goods were removed from the store, Tomlinson executed a mortgage upon the entire stock of merchandise in his store to Davis, Mallory & Co. as security for the debt he owed them, and placed them in immediate possession. They had no knowledge of the previous sale to Meyer & Co., and, when informed of it, refused to recognize the transaction, or surrender the goods to Meyer & Co., but took the goods out of the box, which had never been nailed up or closed in any manner, replaced them upon the shelves among the general stock, and sold them under their mortgage. Meyer & Co. now brought suit for the conversion of the goods; and upon a trial without a jury the circuit court held that they were entitled to recover the value of the goods that had been separated from the remainder of the stock, but not the value of the tobacco and guns, and gave judgment accordingly. Davis, Mallory & Co. have appealed.
It is superfluous to inquire whether the effect of this transaction was to transfer to Meyer & Co. the title or property in the goods, as against Tomlinson, so as to enable them to maintain replevin if he had withheld them, or to throw upon him the loss if the goods had been destroyed by fire; for as we understand the law, in order to make the sale effectual against subsequent purchasers or attaching creditors, there must have been an actual delivery,— a visible and substantial change in the possession. These goods were not ponderous nor bulky, but could have been easily delivered. See Ferguson v. Northern Bank of Ky.
We attach no importance to the fact that Tomlinson furnished to Meyer & Co. a bill of parcels. This was like a bill of sale, and insufficient evidence of a completed sale, unless accompanied by actual possession of the things sold. See Dempsey v. Gardner; McKee v. Garcelon; and Solomons v. Chesley. The only circumstance tending, even remotely, to show that Tomlinson had parted with his control of the goods, was that he had segregated a portion of them from the remainder of his stock, had boxed them up, and set them aside. This was evidence of his intention to select and appropriate them to the use of the plaintiffs. But it is not shown that the plaintiffs were even present, in person or by agent, when this was done. The box was not nailed or closed. Neither it nor the goods were marked with the plaintiffs' name or initials. The plaintiffs did not take charge of the package; nor were they to send and get the goods, but Tomlinson was to convey them to the warehouse. The plaintiffs, therefore, had no possession; and, before anything further was done, Tomlinson resold the same goods to the defendants, who had no notice of the prior sale, and who took possession. The defendants thereby obtained the better title. Crawford v. Forristall; Allen v. Carr; Veazie v. Somerby; and Garman v. Cooper.
Reversed, and remanded for further proceedings.
NOTE.
An oral contract of sale, where no part of the price is paid, is invalid, unless the buyer accepts and receives part of the thing sold; a delivery alone by the vendor is not sufficient, but there must be a receipt and acceptance by the vendee, and the acceptance must be voluntary and unconditional. See Jamison v. Simon.
A sale of chattels, where the price is not paid, and the goods are not actually delivered, in the absence of a written contract, is within the statute of frauds, and void as to creditors. See Hickok v. Buell.
But an oral contract may be taken out of the statute by a written admission in a letter to a third person. See Warfield v. Wisconsin Cranberry Co.
Where the contract for the sale of goods is oral, and no part of the price is paid, there must be not only a delivery of the goods by the vendor, but a receipt and acceptance of them by the vendee, to pass the title, or make the vendee liable for the price. See Ex parte Parker.
If, after the contract was made, the defendant takes possession of the property, (wood,) and has it repiled, this is sufficient to take it out of the statute of frauds. See Richards v. Burroughs.
And under a statute of Iowa, providing that no evidence of any contract for the sale of personal property is competent when no part of the property is delivered, and no part of the price paid, it was held that a delivery of the goods by the vendor to a common carrier is a delivery to the vendee sufficient to take the contract out of the statute of frauds. See Bullock v. Tschergi.
It is held that to constitute a delivery the goods must be set apart, Galloway v. Weck; Hoffman v. King; Carpenter v. Graham; and Galloway v. Week.
Appropriation of goods is acceptance thereof. See Wellauer v. Fellows.
Where there is a verbal order for several articles, the acceptance of a part of them, though shipped at different times from the others, will make the entire contract valid. See Farmer v. Gray.
Where a part only of the goods sold is separated from the bulk, there is no delivery of any except that part actually separated. See Holmes v. Bailey.
But it has been held that the pointing out of hogs sold, which were then accepted, although permitted to remain among and be fed with other hogs in the same drove, is a valid delivery. See Webster v. Anderson.
It is the fact of delivery under and in pursuance of the agreement of sale, not the time when delivery is made, that the statute of frauds renders essential to the proof of a valid contract. So that a delivery at a future day is sufficient if made in pursuance of the contract; and, upon the same principle, the place of delivery can make no difference. See Somers v. McLaughlin.
Labels:
case law,
contracts,
conversion,
guns,
law,
merchant of Pine Bluff,
mortgage,
statute of frauds,
stock,
tobacco,
trial
Johnson v. Lewis
Johnson v. Lewis, 14 S.W. 466 (Ark. 1885).
The appellant Johnson filed his complaint against appellees, Thomas and William Lewis, alleging that he was in possession, and had been for some time, of a small tract of land which is surrounded by the farm of the defendants in such manner as that there is no mode of egress from it to any public highway, or ingress from any public highway, except across and upon the land of the defendants. He further alleges that he, and those under whom he claimed, had been in the habit of crossing the lands of defendants, to and from the surrounded premises, for more than 12 years, whereby a right of way had accrued to him as an easement to his said lands by prescription. But he alleges that defendants had wrongfully and unjustly enclosed their said lands, stopped up the way where he had been crossing, and refused to permit the plaintiff to cross the same in any manner to or from his said premises; that he had planted on his said lands 12 acres of cotton and 10 of corn, which were lost to him on account of such unjust proceeding of defendants, and he claimed damages in that amount.
To this complaint the defendants filed a general demurrer. Subsequently this demurrer was conceded, and the complaint was amended by interlineation, but the record does not disclose what this interlineation was. To the complaint as amended, however, the defendants filed a general demurrer. At this stage of the proceedings William H. Bizzell petitioned the court to be made a party plaintiff, alleging that he was the owner of the lands described in plaintiff's complaint, and that the said plaintiff Johnson was his tenant; that the right of way across the defendants' lands claimed by his co-plaintiff Johnson was an easement incident to his said lands, which had existed and been enjoyed in behalf of himself, and those under whom he claimed, for more than 12 years, and was a right implied in the grant of said lands from the government; that being such owner, and in possession of said lands and right of way appurtenant thereto, he had rented the same to said Johnson for the year 1879, at the yearly rent of $75, which Johnson had agreed to pay him out of the crop to be raised thereon, whereby, and by reason of the statute in such cases provided, he had acquired a lien upon the crop of cotton and corn so planted thereon for the payment of such rent, but by reason of such unlawful conduct and doings of the defendants, said crop was wholly lost, and, Johnson being insolvent, he was wholly unable to collect his said rent, and that by reason of such wrongful acts he was deprived of the use of his lands, etc. Bizzell was made a party plaintiff upon his petition. His petition was taken as a part of the complaint, and defendants' general demurrer extended to the petition, as well as to the original complaint. The court after consideration sustained the demurrer, and dismissed the whole proceeding. The plaintiffs appealed to this court.
It is insisted by the appellants that the allegations in the complaint sufficiently state that the plaintiffs have been in the actual enjoyment of a right of way across defendants' lands for a length of time which would clothe them with a vested right in such way, and the demurrer, admitting the truth of these allegations, should have been overruled. It is further insisted that seven years, or the period of our statute of limitations for the recovery of real property, is the period in which the enjoyment of such way would ripen into a vested right of way which could not be taken away. We are of the opinion, however, that the pleadings do not raise or present the question of a right of way across these defendants' lands by prescription. A right of way across another's land, where it exists, is an incorporeal hereditament, which may be appurtenant to adjoining lands, or in gross, but such hereditament does not come within the statute of limitations applicable to land or real estate. A vested right to such way may be acquired by use for a sufficient length of time; but for any length of time to ripen into an independent right the way should be confined to a definite line. Its use should not only be open and notorious, but continuous for the whole period. It should be occupied and used as a right, and not merely as a favor or privilege granted by the owner of the servient lands. In other words, the right of way should be definite, continuous, and adverse to the owner. A right thus acquired was by the common law called "a right by prescription," which term was peculiar to incorporeal hereditaments. The right was founded upon the presumption of a grant, and no one could prescribe for an easement in another's lands, except where it had been used time out of mind, or, in the quaint language of the old authors, "for a time whereof the memory of man runneth not to the contrary." It was sufficient to defeat a claim for such an easement that there was a time when the exercise or enjoyment of the same did not exist. No presumption of a lost grant of a right of way or other easement would be tolerated at common law so long as a time could be shown when such easement was not in use. In subsequent times, however, and especially in this country, the law has been much changed, and the length of time within which such right may be established has been much shortened. In Massachusetts and other states, by repeated decisions, the time has been held to be 20 years, in analogy to the statute limiting an entry into lands. See Sibley v. Ellis. And other states have adopted by analogy the same rule. See Parker v. Foote; Curtis v. Keesler; Cooper v. Smith; and Tracy v. Atherton. In Wynn v. Garland, this court held that "an easement is a liberty, privilege, or advantage which one man may have in the lands of another without profit, and must be under a deed or by prescription." It further held that "though the grant of an easement is within the statute of frauds, and must be in writing, yet a parol grant executed will be upheld under the same circumstances, and on the same principles, that a parol contract for the sale of lands would be; as where the grantee made improvements in good faith under the grant, or expended money or capital in its enjoyment." We are not aware that it has ever been determined in this state as to what length of time the enjoyment of such an easement would create a vested right by prescription, nor is it necessary to determine the question here. We do not think the plaintiffs' complaint sufficiently defines such a right of way across the defendants' lands as would at any time ripen into a vested right. It fails to define any particular way by metes and bounds, but merely alleges a habit of crossing defendants' lands to and from their premises, without stating whether such crossing was even confined to any particular route or line. It fails to state whether such crossing was by right on the part of plaintiffs, or by mere license by the defendants; nor is it stated whether such way had been open and continuous for the whole period alleged. It is not alleged from whom either party derived title to their lands, and no state of facts is alleged from which an obligation on the part of defendants could arise to permit the plaintiffs to have a way across their lands. The plaintiffs, however, were not without remedy. We have a statute which prescribes the mode by which parties so circumstanced can have relief. By proceeding under this statute the plaintiffs could have had a right of way established, and we think they should have pursued this remedy. Affirmed.
BATTLE, J., did not sit in this case.
Notes:
1. This case, filed at November term, 1885, is now published by request, with others, in order that the Southwestern Reporter may cover all cases in the Arkansas Reports from volume 47, p. 1.
The appellant Johnson filed his complaint against appellees, Thomas and William Lewis, alleging that he was in possession, and had been for some time, of a small tract of land which is surrounded by the farm of the defendants in such manner as that there is no mode of egress from it to any public highway, or ingress from any public highway, except across and upon the land of the defendants. He further alleges that he, and those under whom he claimed, had been in the habit of crossing the lands of defendants, to and from the surrounded premises, for more than 12 years, whereby a right of way had accrued to him as an easement to his said lands by prescription. But he alleges that defendants had wrongfully and unjustly enclosed their said lands, stopped up the way where he had been crossing, and refused to permit the plaintiff to cross the same in any manner to or from his said premises; that he had planted on his said lands 12 acres of cotton and 10 of corn, which were lost to him on account of such unjust proceeding of defendants, and he claimed damages in that amount.
To this complaint the defendants filed a general demurrer. Subsequently this demurrer was conceded, and the complaint was amended by interlineation, but the record does not disclose what this interlineation was. To the complaint as amended, however, the defendants filed a general demurrer. At this stage of the proceedings William H. Bizzell petitioned the court to be made a party plaintiff, alleging that he was the owner of the lands described in plaintiff's complaint, and that the said plaintiff Johnson was his tenant; that the right of way across the defendants' lands claimed by his co-plaintiff Johnson was an easement incident to his said lands, which had existed and been enjoyed in behalf of himself, and those under whom he claimed, for more than 12 years, and was a right implied in the grant of said lands from the government; that being such owner, and in possession of said lands and right of way appurtenant thereto, he had rented the same to said Johnson for the year 1879, at the yearly rent of $75, which Johnson had agreed to pay him out of the crop to be raised thereon, whereby, and by reason of the statute in such cases provided, he had acquired a lien upon the crop of cotton and corn so planted thereon for the payment of such rent, but by reason of such unlawful conduct and doings of the defendants, said crop was wholly lost, and, Johnson being insolvent, he was wholly unable to collect his said rent, and that by reason of such wrongful acts he was deprived of the use of his lands, etc. Bizzell was made a party plaintiff upon his petition. His petition was taken as a part of the complaint, and defendants' general demurrer extended to the petition, as well as to the original complaint. The court after consideration sustained the demurrer, and dismissed the whole proceeding. The plaintiffs appealed to this court.
It is insisted by the appellants that the allegations in the complaint sufficiently state that the plaintiffs have been in the actual enjoyment of a right of way across defendants' lands for a length of time which would clothe them with a vested right in such way, and the demurrer, admitting the truth of these allegations, should have been overruled. It is further insisted that seven years, or the period of our statute of limitations for the recovery of real property, is the period in which the enjoyment of such way would ripen into a vested right of way which could not be taken away. We are of the opinion, however, that the pleadings do not raise or present the question of a right of way across these defendants' lands by prescription. A right of way across another's land, where it exists, is an incorporeal hereditament, which may be appurtenant to adjoining lands, or in gross, but such hereditament does not come within the statute of limitations applicable to land or real estate. A vested right to such way may be acquired by use for a sufficient length of time; but for any length of time to ripen into an independent right the way should be confined to a definite line. Its use should not only be open and notorious, but continuous for the whole period. It should be occupied and used as a right, and not merely as a favor or privilege granted by the owner of the servient lands. In other words, the right of way should be definite, continuous, and adverse to the owner. A right thus acquired was by the common law called "a right by prescription," which term was peculiar to incorporeal hereditaments. The right was founded upon the presumption of a grant, and no one could prescribe for an easement in another's lands, except where it had been used time out of mind, or, in the quaint language of the old authors, "for a time whereof the memory of man runneth not to the contrary." It was sufficient to defeat a claim for such an easement that there was a time when the exercise or enjoyment of the same did not exist. No presumption of a lost grant of a right of way or other easement would be tolerated at common law so long as a time could be shown when such easement was not in use. In subsequent times, however, and especially in this country, the law has been much changed, and the length of time within which such right may be established has been much shortened. In Massachusetts and other states, by repeated decisions, the time has been held to be 20 years, in analogy to the statute limiting an entry into lands. See Sibley v. Ellis. And other states have adopted by analogy the same rule. See Parker v. Foote; Curtis v. Keesler; Cooper v. Smith; and Tracy v. Atherton. In Wynn v. Garland, this court held that "an easement is a liberty, privilege, or advantage which one man may have in the lands of another without profit, and must be under a deed or by prescription." It further held that "though the grant of an easement is within the statute of frauds, and must be in writing, yet a parol grant executed will be upheld under the same circumstances, and on the same principles, that a parol contract for the sale of lands would be; as where the grantee made improvements in good faith under the grant, or expended money or capital in its enjoyment." We are not aware that it has ever been determined in this state as to what length of time the enjoyment of such an easement would create a vested right by prescription, nor is it necessary to determine the question here. We do not think the plaintiffs' complaint sufficiently defines such a right of way across the defendants' lands as would at any time ripen into a vested right. It fails to define any particular way by metes and bounds, but merely alleges a habit of crossing defendants' lands to and from their premises, without stating whether such crossing was even confined to any particular route or line. It fails to state whether such crossing was by right on the part of plaintiffs, or by mere license by the defendants; nor is it stated whether such way had been open and continuous for the whole period alleged. It is not alleged from whom either party derived title to their lands, and no state of facts is alleged from which an obligation on the part of defendants could arise to permit the plaintiffs to have a way across their lands. The plaintiffs, however, were not without remedy. We have a statute which prescribes the mode by which parties so circumstanced can have relief. By proceeding under this statute the plaintiffs could have had a right of way established, and we think they should have pursued this remedy. Affirmed.
BATTLE, J., did not sit in this case.
Notes:
1. This case, filed at November term, 1885, is now published by request, with others, in order that the Southwestern Reporter may cover all cases in the Arkansas Reports from volume 47, p. 1.
