1. Matters of evidence are not required to be stated in a bill
of particulars.
2. A purchaser's receipt and acceptance of goods sufficient to
satisfy the statute of frauds may be constructive.
3. A. contracted by parol, in New York, for the purchase of a
large quantity of spirituous liquor of B., who, by the agreement,
was to furnish certain labels. B. delivered them, pursuant to
instruction, to A. in New York, and slipped the liquor to A. in
Michigan, where he resided. A., when sued for the price of the
liquor, no part of which had been paid, insisted that the contract
was not completed until the delivery of the liquor in Michigan, and
he relied upon the prohibitory liquor law of that state, which
declares that all such contracts are null and void. The jury found
that the labels added to the value of the liquor and formed part of
the price, and that A. accepted them in New York as a part of the
goods sold.
Held that the finding of the jury upon the
question of acceptance being final and conclusive, the contract was
executed in New York, and was by the laws thereof valid.
This was an action by Paris, Allen & Co., of New York,
against Garfield & Wheeler, of Detroit, Mich., to recover for
certain spirituous liquors sold to the defendants by the plaintiffs
in the City of New York.
The facts are stated in the opinion of the Court.
Page 96 U. S. 559
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Neither the manufacture nor the sale of spirituous or
intoxicating liquors is allowed by the law of the state where the
present controversy arose. Instead of that, the state law provides
that all payments made for such liquors so sold may be recovered
back, and that all contracts and agreements in relation to such
sales shall be utterly null and void against all persons and in all
cases, with an exception in favor of the
bona fide holders
of negotiable securities and the purchasers of property without
notice. 1 Comp.Laws, Mich., p. 690.
Two bills of goods consisting of spirituous liquors were
purchased of the plaintiffs by the defendants, which, including
exchange, amounted to $4,143.69. Payment being refused, the
plaintiffs brought suit in the court below to recover the amount,
and the verdict and judgment were for the plaintiffs. Exceptions
were taken by the defendants, and they sued out the present writ of
error.
Page 96 U. S. 560
Sufficient appears to show that the plaintiffs are citizens of
New York and that the defendants are citizens of Michigan, that the
liquors were purchased of the plaintiffs, as alleged, and that the
same were received and sold by the defendants, but they set up the
prohibitory liquor law of the latter state, providing that all such
contracts are utterly null and void.
Evidence was introduced by the plaintiffs showing that the
liquors were ordered by one of the defendants at a time when he was
temporarily in the City of New York, and that the plaintiffs, by
his request, sent certain labels to be attached to the same to the
defendant at the hotel in that city where he was stopping. By the
agreement at the time the sale was made, the plaintiffs were to
furnish these labels to the purchasers, and the evidence showed
that the value of the labels entered into the price charged for the
liquors, and that the labels, by the terms of the contract, were to
be furnished to the buyers by the sellers without any other charge
than the price to be paid for the liquors. Labels of the kind were
something more than ordinary labels affixed to bottles, as they
indicated not only the kind of liquor which the bottle contained,
but also embraced an affidavit that the distillation was genuine,
and of the particular brand manufactured and distilled by the
plaintiffs, support to which is derived from the fact that the
label was copyrighted, so that no other person than the plaintiffs
had any right to make, use, or vend it.
Certain questions were submitted to the jury, among which were
the following:
Were there any receipt and acceptance in New York of part of the
goods sold, and if so what was so received? To which the jury
answered there was, to-wit, certain labels. Was any thing added to
the price of the liquors on account of the labels, and, if so, what
amount or price? Answer, there was nothing added, but the labels
added to the value of the liquors, and formed part or parcel of the
price.
Testimony was offered by the plaintiffs in respect to the
delivery of the labels to the defendant while he was at the hotel
in New York, to which the defendants objected, but the court
overruled the objection and the testimony was admitted, subject to
the defendant's objection.
Page 96 U. S. 561
Errors assigned are in substance and effect as follows:
1. That the court erred in refusing to charge the jury that the
delivery of the labels, as proved, was not a receipt and acceptance
of part of the goods sold within the meaning of the state statute
of frauds.
2. That the court erred in refusing to charge the jury that the
evidence was not sufficient to take the case out of the statute of
frauds.
3. That the court erred in refusing to charge the jury that the
sale was not consummated until the defendants received and accepted
the goods in the state where they resided.
4. That the court erred in instructing the jury that the defense
set up is one not to be favored, and that the proof to support it
must be clear and satisfactory, before the jury can consistently
enforce it.
5. That the statute is a penal statute, in derogation of the
rights of property; and that for that reason, if for no other, it
must receive a strict construction.
6. That the court erred in instructing the jury that if the
labels were included in the contract and the liquors were worth
more to the defendants on account of the labels, then the receipt
and acceptance of the same by the acting defendant took the case
out of the New York statute of frauds, and their verdict should be
for the plaintiffs.
Due exception was also made to the ruling of the court in
admitting the evidence reported in respect to the delivery and
acceptance of the labels furnished to the purchasers at the time
the order for the liquors was filled, the objection being that the
labels are not mentioned in the plaintiff's bill of particulars
filed in the case.
Matters of evidence are never required to be stated in such a
paper. Courts usually require such a notice where the declaration
is general in order that the defendant may know what the cause of
action is to which he is required to respond. Nothing is wanted in
this case to meet that requirement, as all the items of the demand
are distinctly and specifically stated in the bill filed in
compliance with the order of the court.
Merchants selling spirituous liquors in bottles usually label
the bottles, to indicate the kind, character, age, quality, or
proof of the liquor or to specify the name of the manufacturer or
the place where it was manufactured or distilled. Such are somewhat
in the nature of trademarks, and are useful to the seller
Page 96 U. S. 562
of the liquors to enable him to distinguish one kind of liquor
from another without opening the bottle and to commend the article
to his customers without oral explanation.
Coming to the errors formally assigned, it is manifest that the
first and second may be considered together, as they depend
entirely upon the same considerations.
Both parties concede that the bargain for the sale of the
liquors in this case was made in New York, and, by the laws of that
state, contracts for the sale of any goods, chattels, or things in
action, for the price of $50 or more shall be void unless, 1, a
note or memorandum of such contract be made in writing, and be
subscribed by the parties to be charged thereby, or, 2, unless the
buyer shall accept and receive part of such goods, or the
evidences, or some of them, of such things in action, or, 3, unless
the buyer shall at the time pay some part of the purchase money. 3
Rev.Stats. New York (6th ed.) 142, sec. 3.
Four answers are made by the plaintiffs to that proposition,
each of which will receive a brief consideration:
1. That the defendants received and accepted the labels which
the plaintiffs, contracted to furnish at the time they filled the
order for the liquors.
2. That the case is not within the statute of frauds, inasmuch
as the defendants received the liquors, and sold the same for their
own benefit.
3. That the statute of Michigan, prohibiting the sale of such
liquors, and declaring such contracts null and void, has been
repealed.
4. That the subsequent letter written by the defendants to the
plaintiffs takes the case out of the operation of the statute
requiring such a contract to be in writing.
Authorities almost numberless hold that there is a broad
distinction between the principles applicable to the formation of
the contract and those applicable to its performance, which appears
with sufficient clearness from the language of the statute -- such
a contract must be in writing, or there must be some note or
memorandum of the same to be subscribed by the party to be charged.
But the same statute concedes that the party becomes liable for the
whole party to be charged, but the same accepts and receives part
of the same, or the evidences, or some of them, of such things in
action, and the authorities agree
Page 96 U. S. 563
that where the question is whether the contract has been
fulfilled, it is sufficient to show an acceptance and actual
receipt of a part, however small, of the thing sold in order that
the contract may be held to be good even though it does not
preclude the purchaser from refusing to accept the residue of the
goods if it clearly appears that they do not conform to the
contract. Benjamin on Sales (2d ed.) 117;
Hinde v.
Whitehouse, 7 East 558;
Morton v. Tibbett, 15 Ad.
& E.N.S. 427.
Hence, said Lord Campbell in the case last cited, the payment of
any sum in earnest to bind the bargain, or in part payment, is
sufficient, the rule being that such an act on the part of the
buyer, if acceded to on the part of the vendee, is an answer to the
defense.
"Accept and receive" are the words of the statute in question,
but the law is well settled that an acceptance sufficient to
satisfy the statute may be constructive, the rule being that the
question is for the jury whether the circumstances proved, of
acting or forbearing to act, do or do not amount to an acceptance
within the statute.
Bushel v. Wheeler, 15 Ad. & E.N.S.
445; Chitty, Contr. (10th ed.) 367;
Parker v. Wallis, 5
El. & Bl. 21;
Lillywhite v. Devereux, 15 Mee. & W.
285;
Simmonds v. Humble, 13 C.B.N.S. 261; Addison, Contr.
(6th ed.) 169.
Questions of the kind are undoubtedly for the jury, and it is
well settled that any acts of the parties indicative of ownership
by the vendee may be given in evidence to show the receipt and
acceptance of the goods to take the case out of the statute of
frauds. Conduct, acts, and declarations of the purchaser may be
given in evidence for that purpose, and it was held in the case of
Currie v. Anderson, 2 El. & El. 591, that the vendee
of goods may so deal with a bill of lading as to afford evidence of
the receipt and acceptance of the goods therein described.
Gray
v. Davis, 10 N.Y. 285.
Throughout it should be borne in mind that one of the defendants
in person visited the plaintiff's place of business, and while
there ordered the liquors, and that the liquors were all received
by the defendants at their place of business and were sold by them
for their own benefit; that the contract between the sellers and
purchasers was that the former should furnish
Page 96 U. S. 564
the labels as part of the contract, and the evidence shows that
they fulfilled that part of the contract and that they delivered
the same to the contracting party at his hotel, before he left the
state where the purchase was made.
Satisfactory evidence was also introduced by the plaintiffs
showing that they drew a draft on the defendants for the payment of
the price and that the defendants answered the letter of the
plaintiffs declining to accept the same, as more fully set forth in
the record, in which they state that the purchase was on four
months, with the further privilege of extending the time two months
longer by allowing seven per cent interest, adding that if the
plaintiffs doubted their word, they had "a written contract to that
effect." What they claim in the letter is that the arrangement was
made with the salesman, and they state that they would not have
given him the order if he had not given them "those conditions."
They make no complaint that the liquors were not of the agreed
quantity and quality, and certainly leave it to be implied that
they had been duly received and that they were satisfactory.
It was contended by the plaintiffs that the case was taken out
of the statute of frauds 1. because the labels were a part of what
was purchased, and that the defendants accepted and received the
same at the time and place of the purchase; 2. that the subsequent
letter, as exhibited in the record, is sufficient for that
purpose.
Enough appeared at the trial to show that the labels were
copyrighted, and that the plaintiffs agreed to furnish the same
without any additional charge, and the bill of exceptions also
shows that it was conceded that the defendants accepted and
received the labels at the hotel, as claimed by the plaintiffs.
Still the defendants denied that the labels were of any value or
that they entered into or constituted any part of the things
purchased, both of which questions the circuit judge submitted to
the jury, remarking at the same time that by the furnishing the
labels with the liquors, the defendants acquired the right to use
the copyright to that extent, without which, or some equivalent
permission or license, they would have had no such lawful
authority.
Pursuant to these suggestions, the jury were directed to
ascertain
Page 96 U. S. 565
whether the liquors were worth more to the defendants on account
of the labels and whether the labels were included in the contract,
and they were instructed that if they found affirmatively in
respect to both of these inquiries, then the receipt and acceptance
of the labels as alleged took the case out of the statute of
frauds, because then there was a receipt and acceptance by the
defendants of a portion of the things purchased.
Appropriate instruction was also given to the jury in respect to
the subsequent letter sent by the defendants to the plaintiffs, and
the jury were told by the presiding judge, that if they found,
under the instructions given, that the defendants received and
accepted a part of the things purchased, then the contract was made
valid as a New York contract, and that their verdict should be in
favor of the plaintiffs.
Currie v. Anderson, supra. That
if the contract was not made valid by the acceptance and receipt of
the labels nor by the letter exhibited in the record, then it was a
Michigan contract, and their verdict should be for the defendants.
Meredith v. Meigh, 2 El. & Bl. 364;
Castle v.
Sworder, 6 H. & N. 828; Law Rep. 1 C.P. 5.
Controlling authorities already referred to show that the
question whether the goods or any part of the same were received
and accepted by the purchaser is one for the jury, to which list of
citations many more may be given of equal weight and directness.
Just exception cannot be taken to the form in which the question
was submitted to the jury, and the record shows that the verdict
was for the plaintiffs and that the jury found, in response to the
fifth question, that the labels added to the value of the liquors
and that they formed part or parcel of the price.
Jackson v.
Lowe, 7 Moore 219.
Where goods are purchased in several parcels, to be paid for at
a future day, the whole, within the meaning of the statute of
frauds, constitutes but one contract and the delivery of part to
the purchaser is sufficient to take the case out of the operation
of the statute of frauds.
Mills v. Hunt, 20 Wend. (N.Y.)
431.
Apply the finding of the jury in this case to the conceded facts
and it shows that the defendants were in the situation of
Page 96 U. S. 566
a purchaser who goes to a store and buys different articles, at
separate prices for each article, under an agreement for a credit,
as in this case, accepting a part but leaving the bulk to be
forwarded by public conveyance. Frequent cases of the kind occur,
and it is well settled law that the delivery of a part of the
articles so purchased without any objection at the time as to the
delivery is sufficient to take the case out of the statute of
frauds as to the whole amount of the goods.
Mills v. Hunt,
20
id. 431.
The delivery in such a case, in order that it may have that
effect, must be made in pursuance of the contract, the question
whether it was so made or not being one for the jury; but if they
find that question in the affirmative, then it follows that the
case is taken out of the statute of frauds.
Van Woert v. Albany
& Susquehanna Railroad Co., 67 N.Y. 539.
Parol evidence is admissible to show what the circumstances were
attending the contract and to show the receipt and acceptance, in
whole or in part, of the goods purchased.
Tomkinson v.
Staight, 17 C.B. 695;
Kershaw v. Ogden, 3 H. & C.
715.
Due acceptance and receipt of a substantial part of the goods
will be as operative as an acceptance and receipt of the whole, and
the acceptance may either precede the reception of the article or
may accompany their reception. 2 Whart.Evid., sec. 875.
Differences of opinion have existed upon some of these matters,
but all the authorities, or nearly all, concur that the question is
for the jury, to be determined by the circumstances of the
particular case.
Id.
Viewed in the light of these suggestions, it is clear that the
question whether the evidence showed that the case was taken out of
the statute of frauds by the acceptance and receipt by the
defendants of a part of what was purchased by them, in connection
with the letter of the defendants exhibited in the record, was
fairly submitted to the jury and that their finding in the premises
is final and conclusive.
Attempt was also made by the plaintiffs to support the judgment
upon the ground that the defendants were estopped to set up the
statute of frauds as a defense in view of the fact that they had
received the liquors and sold the same for their
Page 96 U. S. 567
own benefit; but it is not necessary to examine that proposition
in view of the conclusion that the case is taken out of the
operation of the statute by the other evidence and the finding of
the jury. Nor is it necessary to give any consideration to the
proposition that the act of the state of Michigan to prevent the
manufacture and sale of spirituous and intoxicating liquors as a
beverage is repealed, for the same reason and also for the
additional reason that the repealing clause saves "all actions
pending, and all causes of action which had accrued at the time"
the repealing act took effect. Sess.Acts, 1875, p. 279.
Having come to the conclusion that the case is taken out of the
statute of frauds, it is not deemed necessary to give the other
assignments of error a separate examination. Suffice it to say that
the Court is of the opinion that there is no error in the
record.
Judgment affirmed.