{ "id": 1470256, "name": "Minton v. McDaniel", "name_abbreviation": "Minton v. McDaniel", "decision_date": "1947-12-22", "docket_number": "4-8366", "first_page": "591", "last_page": "598", "citations": [ { "type": "official", "cite": "212 Ark. 591" }, { "type": "parallel", "cite": "207 S.W.2d 617" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "259 S. W. 17", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "163 Ark. 96", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1383819 ], "opinion_index": 1, "case_paths": [ "/ark/163/0096-01" ] }, { "cite": "4 A. L. R. 914", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 1 }, { "cite": "15 S. E. 344", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 1 }, { "cite": "36 S. C. 69", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 8715258 ], "opinion_index": 1, "case_paths": [ "/sc/36/0069-01" ] } ], "analysis": { "cardinality": 587, "char_count": 12526, "ocr_confidence": 0.498, "pagerank": { "raw": 4.184991920046476e-08, "percentile": 0.2676184982213249 }, "sha256": "3c90ac6ac94cdae2afa39162d703e8f243ab300f349546547120f15d6d692342", "simhash": "1:eb0e7fc67a99bc38", "word_count": 2288 }, "last_updated": "2023-07-14T15:01:33.594173+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "The Chief Justice concurs." ], "parties": [ "Minton v. McDaniel." ], "opinions": [ { "text": "Holt, J.\nAppellee, Ted McDaniel, brought this action against Ira Minton (appellant) to recover damages for an alleged breach of a contract for the sale of cotton.\nHe alleged in effect that he entered into an oral contract May 14,1946, with appellant whereby appellant sold him twenty-four bales of low grade cotton at eighteen cents a pound, which he (appellee) resold to Little Rock brokers; that appellant failed to live up to the contract and refused to surrender possession of the cotton to him; that he, appellee, \u201cmade every effort to buy the cotton at the price defendant (appellant) had agreed to sell it to him, but due to an advance in the cotton market the plaintiff was unable to purchase the cotton at that price and was forced to pay $35.25 extra for each of the twenty-four bales he had sold the brokers in Little Rock.\u201d That as-a result he was damaged in the sum of $846 on account of appellant\u2019s failure to live up to the contract.\nAppellant interposed a general denial and affirmatively pleaded the Statute of Frauds as a defense.\nFrom a jury\u2019s verdict in the amount of $846 in favor of appellee comes this appeal.\nAppellant admitted that he sold not a part, but all of the twenty-four bales of cotton involved here to appellee on an oral contract at eighteen cents per pound, but contends that he never made such delivery of any part of the cotton to appellee as would take the contract of purchase out of the Statute of Frauds (\u00a7 6061 of Pope\u2019s Digest), and therefore that the contract was unenforcible. This was the real issue in the case.\nThe facts upon which the suit was based were to the following effect. Appellee testified that he had been in the cotton business since 1929. Mr. Minton had 24 bales of low grade cotton he had been trying to buy for some weeks, so he went by to see him and told him he thought he could get eighteen cents for it and they agreed on that price; that they went out to his gin and got the samples which appellee took with him and. sold it, and came back and gave appellant instructions where to ship it. Appellee took the samples to Little Rock and sold the cotton to Rauch & Turner, and came back and told appellant, he could ship it to either Hope or Little Rock, but Hope was preferred, and he could draw on him at Arkadelphia with compress receipts attached, and appellant agreed. He waited about two weeks, but the draft didn\u2019t come in and he stopped by to see Mr. Minton. \u201cQ. Every time you stopped, was he still going to let you have it? A. Yes, sir, as soon as it got dry. Q. There was no argument about the contract? A. No, sir, and it goes on somewhere about, I would say 30 days, maybe six weeks, after that and I stopped by and Mr. Minton wasn\u2019t there and one of the ladies or the boy there told me they carried a truckload \u2014 I don\u2019t know whether it was all of it or how many bales, but they were delivering the cotton that day. Q. That was the cotton you had bought? A. Yes, sir. Q. That was at the Hope Compress according to your contract? A. Yes, sir, and a week or two after that, he still hadn\u2019t drawn on me for the cotton and I stopped by again and Mr. Minton told me he had carried a truckload of the cotton down there \u2014 anywhere from five to ten bales\u2014 five, six or seven bales of the cotton and then they run into wet cotton and the Compress wanted to dock him so much for it, he didn\u2019t feel like putting it in and being docked so much for it, he didn\u2019t bring the balance down there, and I said, Mr. Minton, I would put it all under the shed, the ginning season is all over with, and I would put it inside the gin house. I told him I would put it under the shed and let it dry out. Q. Did he do that? A. Yes, sir. Q. That was the cotton you had bought? A. Yes, -it was the cotton I had bought \u2014 that is all that he had at the gin. He had delivered five or six or seven bales of it.\u201d\nAppellant testified: \u201cQ. They did accept five or six bales? A. For me, yes, sir. Q. That was cotton that you agreed to sell to Mr. McDaniel? A. I wouldn\u2019t be sure about it. It was some cotton recently ginned \u2014 this other cotton had been ginned two months before that. Q. You did tell Mr. McDaniel that you took five or six bales of it down there ? A. Of that load, yes, sir. Q. And you told him to wait until you got the rest and at that time you meant to let Mr. McDaniel have the cotton? A. If the compress had taken the cotton, I would have sold it to Ted. ... It was the understanding, I would either put it on the platform and get railroad bill of lading or deliver it to the compress. . . . Q. Did you have some other cotton other than the 24 bales ? A. No, sir. Q. That was all the cotton you had? A. Yes, sir. \u2019\u2019\nThe court, in effect, correctly told the jury that if it found any part of the cotton in question had been accepted and actually received by the appellee, then appellee should recover.\nOn the evidence presented, we think it was for the jury to determine whether a partial delivery of the cotton had been made.\nThe general rule, appears well settled that there may be a delivery sufficient to take the transaction out of the Statute of Frauds even though the actual possession of all or part of the goods remain in the seller.\nAmerican Jurisprudence, Yol. 49, p. 592, % 277, states the rule as follows: \u201cWhere Goods Remain in Possession of Seller. \u2014 A transaction may be brought within the exception of the statute applicable to the acceptance and receipt of goods pursuant to an oral contract of sale, notwithstanding actual possession of the goods remains in the seller. Even though the statute specifically provides that there must be an actual receipt, it is well settled that the statute does not mean that the goods must pass into the custody of the purchaser. There may be an actual receipt notwithstanding the custody remains unchanged. It is sufficient if the custodian holds them in a different character or capacity, for instance, as agent or as bailee of the buyer. The question whether there has been a delivery and actual receipt, where the goods remain in the custody of the seller, is one of- the sufficiency of the evidence, so that varying results have been reached in particular cases involving factually such transactions as sales of horses, cattle, oxen, or sheep, hay, growing timber, lumber or wood, produce, corn, cotton, etc., stock in trade, goods in store .or warehouse, dresses and clothing left for alterations, and various miscellaneous items and chattels. In all cases the proof must be clear and unequivocal, and establish an'actual change of the relation of the parties to the property. \u2019 \u2019\nIn 37 O. J. S., p. 641, \u00a7 159, the author says: \u201cThe acceptance and receipt may be by the buyer or by one authorized by him. The acceptance and receipt which the statute of frauds requires must be by the buyer himself or by someone authorized to accept and receive in his behalf. When delivery is made to a third person, under the direction of the buyer that such shall be done, this is sufficient to take the case out of the statute. \u2019 \u2019\nHere, according to appellee\u2019s testimony, which the jury accepted as true, it was agreed that the cotton should be delivered to appellee at the Compress at Hope. The appellant actually carried at least five bales of cotton and unloaded it on the platform of the Compress at Hope with the admitted intention of delivering it to appellee in accordance with the contract. It was a sale on credit \u2014 no lien was claimed by appellant.\nIn these circumstances, the jury was justified in finding that there was therefore accomplished a partial delivery and this would satisfy the requirements of the Statute of Frauds, and whether, as claimed by appellant, after said partial delivery he went back to the Compress and repossessed and removed the cotton, did not destroy the effect-of such delivery in the circumstances here.\nWhen we give, as we must, the strongest probative force to all the testimony and every reasonable inference deducible therefrom in favor of appellee and the jury\u2019s verdict, we are unable to say that there was no substantial testimony to support the jury\u2019s finding that there was accomplished a partial delivery which satisfied the requirements of the Statute of Frauds.\nFinding no error,, the judgment is affirmed.\nThe Chief Justice concurs.", "type": "majority", "author": "Holt, J." }, { "text": "Ed. F. MoFaddin, Justice\n(dissenting). I respectfully dissent from the majority opinion, because the facts \u2014 as I see them \u2014 do not bring this case within the rule of \u201cpartial delivery,\u201d as those words are used in cases involving the statute of frauds. To constitute partial delivery, either the actual or the legal possession of the property \u2014 claimed to be delivered \u2014 must have passed from the seller to the buyer. The evidence in this case shows the entire absence of such essential. Minton had. 24 bales of low-grade cotton; and here is McDaniel\u2019s testimony:\n\u201c . -. . and I told him, \u2018I think I can sell the cotton for you in with my cotton. ... I can get 18 cents for you.\u2019 . ' . . and we agreed at 18 cents and we drove out to his place of business ... to get the samples, and I took the cotton samples with me, and I sold it (cotton), and I came back and gave him shipping instructions where to ship it. ... I said, \u2018You can ship it to Little Rock or yon can ship it to Hope.\u2019 . . . and I told him to take it to Hope and draw on me with the compress receipts attached here at Arkadelphia . . . and the draft never did come in.\u201d\nMcDaniel\u2019s testimony is- the only evidence in the record even claimed to look towards a partial delivery of the cotton. Minton delivered' some cotton to the compress at Hope, but held the compress receipts, and never attached those receipts to a draft. I consider the negotiable compress receipts to be the best evidence of the ownership of the cotton after it was delivered to the compress, and until the negotiable compress receipts passed out of the control of Minton, there was no partial delivery. The mere delivery of cotton to the compress was no delivery to McDaniel, because the compress receipts were never delivered. The Uniform \"Warehouse Receipts Act (\u00a7 14413, et seq., Pope\u2019s Digest) makes the negotiable warehouse receipts the indicia of title.\nFurthermore, McDaniel practically conceded that he never received the cotton, because several months after his original conversation with Minton, and after McDaniel began to doubt whether Minton would ever deliver any of the cotton to him, McDaniel testified that he went back to Minton in an effort to get the cotton. Here is McDaniel\u2019s testimony:\n\u201c . . . I said, \u2018to get it over with, and to treat you right about it, you have got a few bales in the warehouse, and if you will let me have those, I will take the rest here on the platform and absorb the loss to clear it up, and we will either weigh it on your scales or get someone else to weigh it. \u2019 In other words, I was taking all the loss in weights that he might have in order to get it closed, and he said, \u2018I will see about it,\u2019 and I waited a day or two longer and I went by and he told me frankly that he wasn\u2019t going to deliver the cotton. (Italics our own.) This testimony is an absolute admission by McDaniel that he never had delivery of the cotton. He said of the compress receipts: \u201c . . . if you will let me have those.\u201d That statement shows that he never received the receipts or any of the cotton.\nOn McDaniel\u2019s testimony \u2014 and there was no other in the record on this point \u2014 there was no evidence of a partial delivery; and so I think the statute of frauds was a valid defense. On the basis of \u201cliving up to his word,\u201d Minton should have delivered the cotton. But the statute of frauds is a legal defense; and with that defense pleaded by Minton, as it was, I am of the opinion that the evidence did not show any partial delivery so as to take the case out of the statute of frauds.\nIt is not claimed \u2014 and it could not be sustained, even if claimed \u2014 that the delivery of the samples constituted a symbolic delivery of the cotton. The rule of symbolic delivery does not extend to cotton samples. See 27 C. J. 250; Smith v. Evans, 36 S. C. 69, 15 S. E. 344; and annotation in 4 A. L. R. 914. Neither do the facts in the case at bar allow the appellee to rely on the case of McKinney & Sons v. Ragland, 163 Ark. 96, 259 S. W. 17.\nFor the reasons stated, I respectfully dissent from the majority.", "type": "dissent", "author": "Ed. F. MoFaddin, Justice" } ], "attorneys": [ "D. II. Crawford, for appellant.", "Agnes F. Ashby and J. E. Lookadoo, for appellee." ], "corrections": "", "head_matter": "Minton v. McDaniel.\n4-8366\n207 S. W. 2d 617\nOpinion delivered December 22, 1947.\nD. II. Crawford, for appellant.\nAgnes F. Ashby and J. E. Lookadoo, for appellee." }, "file_name": "0591-01", "first_page_order": 607, "last_page_order": 614 }