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Simmons Hardware Co. v. Mullen

Simmons Hardware Company v. Aaron J. Mullen

Simmons Hardware Co. v. Mullen, 22 N.W. 294 (Minn. 1885)
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Court
Supreme Court of Minnesota · State Highest Courts
Decided
February 6, 1885
Judges
Gilfillan
Citations
22 N.W. 29433 Minn. 1951885 Minn. LEXIS 41
Headnotes
Statute of Frauds — Sale—Delivery to Carrier. — A delivery by the seller to a carrier selected by him, for transportation to the purchaser, of goods sold under an agreement void by the statute of frauds, is not such a delivery and acceptance as will take the agreement out of the operation of the statute.
Summary
Action in the district court for Chippewa county for conversion of personal property. The defendant justifies the taking, as sheriff, under a writ of attachment against one Whiteher. The action was tried, without a jury, by Brown, J., who found as facts that Whiteher ordered the goods in question from plaintiff verbally; that they were worth $291.15; that plaintiff shipped them to Whiteher at Granite Falls, in this state, where they arrived and were stored in the warehouse of the railway company which transported them; that Whiteher never called for them, or demanded or in any manner claimed them; that Whiteher, about this time, sold out and left this state, and that the defendant levied upon the goods as the property of Whiteher. Upon these facts judgment was ordered and entered for plaintiff, from which defendant appeals.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Gilfillan

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Gilfillan, C. J.

The agreement for the sale of the goods by plaintiff to Whiteher, the price exceeding $50, and there being no memorandum in writing, and no part of the purchase-money being paid, was void under the statute of frauds, unless there was not only a delivery by the vendor, but an acceptance on the part of the purchaser. The authorities are substantially uniform that delivery by the seller *196 to a carrier selected by him, for the purpose of transportation, is not of itself an acceptance to take the case out of the operation of the statute. Norman v. Phillips, 14 M. & W. 277; Hanson v. Armitage, 5 Barn. & Ald. 557; Maxwell v. Brown, 39 Me. 98 ; Johnson v. Cuttle, 105 Mass. 447 ; Grimes v. Van Vechten, 20 Mich. 410 ; Allard v. Greasert, 61 N. Y. 1 ; Keiwert v. Meyer, 62 Ind. 587 ; Taylor v. Mueller, 30 Minn. 343 .

The plaintiff in this instance selected the carrier. It is unnecessary, therefore, to consider what would have been the effect, in respect to taking the case out of the statute, of delivery to a carrier designated by the purchaser. Whitcher not having done any act of acceptance, the goods still belonged to the plaintiff, and could not have been levied on as Whitcher’s.

Judgment affirmed.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1889: 11893: 11901: 118892026peak 1889 · 1

Relies on it most ⓘ

  1. Fontaine v. Bush41 N.W. 465 (Minn. 1889)
  2. Powder River Live Stock Co. v. Lamb56 N.W. 1019 (Neb. 1893)
  3. Williams-Hayward Shoe Co. v. Brooks64 P. 342 (Wyo. 1901)

Most recent

  1. Williams-Hayward Shoe Co. v. Brooks64 P. 342 (Wyo. 1901)
  2. Powder River Live Stock Co. v. Lamb56 N.W. 1019 (Neb. 1893)
  3. Fontaine v. Bush41 N.W. 465 (Minn. 1889)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 6

DepthCaseCited by
Allard v. Greasert, 61 N.Y. 1 (1874) 21
Johnson v. Cuttle, 105 Mass. 447 (1870) 18
Grimes v. Van Vechten, 20 Mich. 410 (1870) 15
Taylor v. Mueller, 15 N.W. 413 (Minn. 1883) 12
Maxwell v. Brown, 39 Me. 98 (1855) 7
Keiwert v. Meyer, 62 Ind. 587 (1878) 7

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