Devine v. Warner , 76 Conn. 229 ( 1903 )

The plaintiff claimed to have proved, in the trial court, that with his assistance, his brother, John J. Devine, in the season of 1899, raised a crop of tobacco upon their father's land in Suffield, which crop in the fall of that year John J. Devine sold to the defendant at an agreed price; and that the defendant having afterwards refused to take the tobacco or to pay for it, John J. Devine was compelled, by reason of a fall in the market price of such tobacco, to sell it for $528.53 less than the price agreed upon with the defendant. The plaintiff, as the bona fide owner of such right of action, by assignment from his brother, John J. Devine, sues to recover said sum.

As showing that the defendant purchased the tobacco, and accepted and actually received it, the plaintiff claimed to have proved these facts: The defendant on September 22d 1899, having examined the tobacco in the barns in which it was hanging on poles, agreed with John J. Devine to purchase the entire crop at twenty cents a pound, and thereupon, under date of September 22d 1899, made this entry in a notebook in which he made entries of the tobacco which he purchased, and upon the inside of the front cover of which the defendant had written his name: "John J. Devine, four acres at twenty cents"; and showed said entry to John J. Devine, and said to him with reference to the tobacco: "Let it hang until it is cured; then take it down and strap it into bundles, putting about forty pounds to the bundle. Then, when it is stripped, notify me." John J. Devine did as thus directed, and about the 24th of November, 1899, wrote the defendant that the tobacco was ready for shipment and that he (Devine) thought that with this tobacco and that of a neighbor, which the defendant had purchased, a car might be filled. The defendant wrote in reply, that he would be at Devine's place the first of the following week. On November 28th, 1899, the defendant, after he had examined the tobacco as it lay in bundles on the floor of Devine's barn, said to Devine: "You have done your part well. I am going to load one or two cars with tobacco I have purchased here in Suffield, and if I can take this tobacco in one of these cars I will send for it; but if I cannot take it away with me on this trip and a damp spell comes on, open up the sheds so as to let the dampness get in and dampen the bundles, and pile the tobacco up into one or two large piles. In case I don't take it this week it will keep better in one pile than it would spread out only one bundle high." At the end of the week the defendant not having sent for the tobacco, John J. Devine placed it in piles and opened the barns as directed. For several weeks after said last interview the defendant was ill and unable to attend to business. On January 26th, 1900, Devine wrote to the defendant that he was anxious to get the tobacco off of his hands; that he needed the money, and that if he (the defendant) could see his way clear to take the tobacco soon, he would appreciate the favor. On the next day the defendant wrote in reply that he was ill and that he would see Devine as soon as he was able. On February 8th, 1900, the defendant with his hired man, Lathrop, went to the place where the tobacco was piled, and Lathrop went in and inquired of Devine if his tobacco was for sale. Devine replied that he had already sold it. Having reported this answer to the defendant, Lathrop, at the defendant's direction, returned and asked Devine who the purchaser was. Devine replied H. O. Warner (the defendant). The defendant and Lathrop thereupon went into the barns and examined the tobacco, and said to Devine that it was a bad lot of tobacco; and the defendant informed Devine that he would not take the tobacco or pay for it. The market price of this grade of tobacco had since the preceding September dropped eight or ten cents a pound.

Of the defendant's first three reasons of appeal, it need only be said, (1) that — excepting as it appears that the court charged the jury as to the plaintiff's right to maintain this action, to which we shall refer later — the record does not disclose that the trial court held that the plaintiff "acquired any right or title in the subject-matter of this action by reason of Exhibit 3 (the written assignment) and the evidence connected therewith"; (2) that the denial of defendant's motion for a nonsuit is not reviewable; and (3) that as the record contains no statement of the evidence — except in the finding of facts certain evidence is stated in connection with the rulings of the court as to its admissibility — we cannot review the action of the trial court in overruling defendant's motion to set aside the verdict as against the weight of evidence.

Regarding the acceptance and receipt of the tobacco necessary to meet the requirements of the statute of frauds, General Statutes, § 1090, the court charged the jury "that while it is true that there may be an acceptance and actual receipt of goods by the vendee, pursuant to a sale unaccompanied by a manual delivery or actual change of custody, — as in cases where the vendee is already in possession or the vendor retains the custody as bailee of the vendee, thus assuming a new relation to the goods, — yet the law requires that the proof in such cases should be clear and unequivocal and establish an actual change of the relation of the parties to the property"; that "as a receipt implies a delivery, there must have been a delivery by the vendor and receipt by the vendee of the tobacco, with an intention on the part of the parties to vest in the vendee the possession and right of possession, and discharged of all lien for the price, and an actual acceptance by the vendee of the tobacco, at least as the goods purchased, if not as its owner by virtue of the purchase"; and that the statute required something more by way of proof of a receipt and acceptance than "mere words indicative merely of the parties' assent to the agreement of sale." This part of the charge complies with the instructions which, upon a former appeal of this case and upon similar facts, we said should have been given to the jury upon the question of the acceptance and receipt required by the statute of frauds. Devine v. Warner, 75 Conn. 375, 379.

Concerning the written memorandum required by the statute, and the evidence offered as to such memorandum, the court charged the jury as follows: "It is not necessary that the written memorandum required by the statute of frauds should be comprised in a single document, nor that it should be drawn up in any particular form. It is sufficient if the contract can be made out in all its terms from any writings of the defendant, or from his correspondence. But it must all be collected from the writings, provided the several writings are so connected by mutual reference or otherwise that there can be no uncertainty as to the meaning and effect of them all when taken together and viewed as a whole, but this connection of the several writings cannot be established by oral testimony offered to supply any defects or omissions in the written evidence. Unless you find that there is such a mutual reference between the letters of the defendant and the entry in his memorandum book that without the aid of the oral evidence which has been listened to by you in this case, you will be unable to consider his letters as a part of his written memorandum. If you should find that there is such a mutual reference and that, as read together, the contract can be understood by you in all its terms, from the letters and the book memorandum, and that the name of the defendant on the fly leaf of the book was intended by the defendant as his signature to the memorandum, then the memorandum is a sufficient compliance with the statute of frauds."

One of the reasons of appeal is that the court erred in so charging the jury. Evidently the error intended to be thus assigned is, not that the court erred in not taking this question entirely away from the jury, or in failing to charge them that the book and letters contained no written memorandum of the agreement signed by the parties to be charged therewith, sufficient, as a matter of law, to answer the requirements of the statute of frauds; for the defendant not only failed to request the court to instruct the jury that the claimed memorandum and signature were, as a matter of law, insufficient under the statute, but, in his written requests to charge, referred to the question, of whether such a memorandum duly signed had been proved, as one of fact for the jury. The claim in the defendant's brief respecting this reason of appeal is, not that the court erred in submitting to the jury, as one of fact, the question of whether a duly signed memorandum had been proved, but in not correctly instructing the jury as to the rule of law to be applied in deciding such question of fact. The law applicable to the questions of fact was correctly stated by the trial court 1 Swift's Dig. s. p. 236; Nichols v. Johnson, 10 Conn. 192,198.

Having instructed the jury that to be the equitable andbona fide owner of a chose in action, within the meaning of General Statutes, § 631, "one must be the real owner of it, the one to whom the equities belong," the court further said to the jury that the evidence that the plaintiff was the actual and good faith owner was in "the instrument of assignment and the testimony of the Devine brothers," and added: "If you believe their testimony, which is uncontradicted and is the only testimony on the subject, it is within your province to find and you should find that the plaintiff has such an interest, that he has complied with the requirements of the statute."

The only ground stated in the defendant's brief for the claim that the court erred in so charging the jury, is that by this language it "passed upon a material question of fact that was entirely within the province of the jury."

The record does not purport to give all the testimony of the Devine brothers. It is not claimed that the evidence showing the plaintiff's ownership of the right of action was contradicted. It appears from the finding that the plaintiff claimed to have shown that, having assisted his brother in raising the crop of tobacco, it was in good faith agreed between them, after the defendant had refused to pay for the tobacco, that the claim should be assigned to the plaintiff for the purposes and upon the terms stated in a written assignment in these words: "Suffield, April 7, 1900. In the fall of 1899 I sold a crop of tobacco in my barns in Suffield to H. O. Warner of New Milford for twenty cents per pound. I subsequently sold this tobacco for twelve and three-quarters cents per pound, making a loss to me of about $523.53. For value received I hereby assign, sell, and transfer to my brother, Thomas F. Devine, who is to endeavor to recover the claim by legal process or otherwise. After deducting the expenses, the remainder is to be divided into three equal parts, two of which are to be returned to me, the remaining third he is to keep. John J. Devine."

It does not appear that the court erred in charging the jury, as it in effect did, that the uncontradicted evidence of these facts, if believed by the jury, was sufficient proof that the plaintiff was the bona fide owner of the chose in action upon which the suit was brought. Devine v. Warner,75 Conn. 375, 381; Metropolitan Life Ins. Co. v. Fuller, 61 id. 252, 262.

The complaint asked for $600 damages. The verdict and judgment were for $633.90. The judgment in excess of the damages claimed was not void, since the court had jurisdiction to render a judgment for that sum. Chaffee v. Hooper,54 Vt. 513. It is not assigned as a reason of appeal that the judgment was erroneous because it exceeded the damages claimed, and therefore we need not consider that question.

There is no error.

In this opinion the other judges concurred.