majority">Morse, J.

The plaintiff sued defendant in justice’s cpurt for 180 cords of wood, alleged to have been sold and delivered to him at Paw Paw, at the price of $1.75 per cord'.

Hé recovered a judgment of $286.13, there being some admitted credits. Defendant appealed to the circuit court *119for Yan Burén county, where a trial was had, before a jury, resulting in verdict and judgment for plaintiff in the sum of $307.81. Defendant brings error to this Court.

It appears, without dispute, that, at the time of the alleged sale of this wood, a part of it was piled in the yard of plaintiff, at Paw Paw,’ and the balance was at Lawrence, some nine miles away. It was in process of being hauled to Paw Paw, and piled with the rest. Plaintiff claims that in February, 1884, defendant came into his office (both of them living in Paw Paw), and wanted to know what he was going to do with the wood he was piling in his yard. Plaintiff replied that he had it there for the purpose of sale. After some talk, the defendant bought the wood in the yard, and what was upon plaintiff’s farm at Lawrence, which was to be delivered by plaintiff in the yard with the rest, and agreed to pay $1.75 per cord for the same. The defendant bought the wood to sell again, and was to pay for it as often as he took away $50 worth ; the whole amount, however, to be paid, in any event, before January 1, 1885.

The defendant denied that he contracted to buy the wood, and claimed that the arrangement was that he should sell the wood for the plaintiff on commission, and pay him $1.75 per cord for what he might sell.

The principal objection made to the judgment in this Court is that the contract was within the statute of frauds, and therefore void. Evidence, however, was introduced upon the part of the plaintiff tending to show that after the contract was made, and the wood all hauled from Lawrence and piled in the yard, the defendant took possession of it and hired it repiled. If the jury believed this to be true, it was sufficient to take the case out of the statute. The court correctly instructed the jury to this effect.

It is claimed that the instructions were misleading, in the respect that they gave the jury to understand that the act of repiling by the defendant was necessarily an acceptance of the goods as sold to him ; that the court did not sufficiently inform the jury of the defendant’s claim that he was selling the wood on commission; and that the taking of possession *120and repiling was not inconsistent with his claim; and that if the repiling was done under such a claim, it could not be nsed as an acceptance or delivery of the wood, to take a void sale out from the bar of the statute.

We have carefully examined the charge of the court, and do not think it open to this complaint.

The circuit judge plainly set out before the jury the respéctive claims of the parties as to the arrangement made in plaintiff’s office in reference to the wood. He then properly instructed them that they were entitled to take into consideration, not only what was said and done at the office, but all the testimony in the case of the subsequent acts, conduct, and dealings of the parties, so far as the same threw any light upon what the true nature of that transaction was. He also said, in effect, that the talk in the office, as claimed by plaintiff, would not constitute a valid sale, without a delivery of the wood. Then he stated that—

“ If you find that the wood was all delivered in the yard, and that, after its delivery, Mr. Burroughs went on there, took possession of it, had it repiled, paid for the repiling of it, sold from it as his own wood, these acts would constitute a sufficient delivery of the wood to him, and take the case out of the statute of frauds.”

This language was in immediate connection with the statement of plaintiff’s claim, and what he must show in order to recover; and previous thereto he had expressly instructed the jury that it was for them to determine whether these acts of defendant were consistent or inconsistent with his claim, adding: “ It may be consistent with it, or inconsistent. It is for you to say whether it is so or not.” We find no error in the charge.

Defendant also insists that the plaintiff could not recover upon the common counts fin assumpsit; that the contract, and the breach of it, should have been alleged specially. If there was a delivery of the property, as the jury must have found there was by their verdict, then the plaintiff’s claim was manifestly for goods sold and delivered. The contract was executed upon his part, and the only breach of it upon *121'the part of the defendant was a refusal or neglect to pay ■over money, the amount of which was easily ascertained and :not disputed. Nothing remained-to be done by either party •except the payment of the price of the wood. This could be ■recovered under the common counts: 2 Greenl. Ev. (Rev. Ed.) § 104, and cases cited; Butterfield v. Seligman, 17 Mich. 98; Begole v. McKenzie, 26 Id. 470; Gage v. Meyers, 59 Id. 300.

No error was committed in excluding defendant’s books of account. There was no dispute as to the amount of coal and other articles received by plaintiff from defendant in payment upon the wood, or the price of the articles. The only object in introducing such books was to show that the keeping of the heading of the account of plaintiff was in corroboration of defendant’s claim that he was selling the wood on commission. There was no necessity, apparent or alleged, of reference to the account as memoranda to refresh defendant’s recollection. The books of a party cannot be allowed to aid him in the manner desired in this case. Besides, the books were offered under the theory that defendant was selling the wood on commission, and he did not place himself within the provisions of the statute as amended in 1885. By such amendment it was provided that the section of the statute making charges and entries in books of account evidence of money paid, etc., should not apply to persons selling on commission, except as to the amount ■charged as commissions for selling, unless accompanied by a voucher, etc. (How. Stat. § 7526; Laws 1885, p. 106); .and, under the statute, the books could not be used to prove the manner of the entry of the heading of. the account against plaintiff .as a corroboration of defendant’s theory as to the contract between them. The statute, in our opinion, was not originally intended or designed for any such purpose.

The judgment below is affirmed, with costs.

The other Justices concurred.

Citation profile

Relationships

How this case has been treated — in progress