Opinion
June Term, 1868
A. Pond, for the appellant.
J.C. Hulbert, for the respondents.
The facts in this case are substantially undisputed, and the questions of law arising upon them are the only subjects for our consideration. The lumber in question had been sold and delivered by Blanchard to Calkins, and a portion of it had been used by Calkins in his business. Finding himself unable to pay for it, he requested Blanchard to "buy it back," and upon an inspection of the lumber by Blanchard, in the presence of both parties, the lumber then being before them, it was agreed between them, that the lumber should be taken back by Blanchard, and that he would draw it away as soon as the weather would permit. Before the lumber was drawn away, the sheriff levied upon it, by order of the defendants, upon an execution against Calkins.
The respondent claims that the title to the lumber did not pass to Blanchard before the levy, for the reason that there was no actual delivery of the possession, and that the statute of frauds intervenes and declares such a sale to be void.
On the part of the appellant, it is urged that the transaction was a rescission simply of an existing sale, and that, under such circumstances, the title passed to the original vendor.
As a simple sale by Calkins to Blanchard, on the 5th of February, it cannot be sustained under the statute of frauds. The delivery was not sufficient. ( Shindler v. Houston, 1 Comst. 261; Baily v. Ogdens, 3 Johns. 399.)
Does this transaction amount simply to a rescission of the contract of sale, and are the provisions of the statute of frauds inapplicable to such a case? It is insisted, that such is the law; and, among others, the case of Cummings v. Arnold (3 Metc. 486) is cited to sustain the claim. In that case, the judge quotes this remark from an English report, hereafter cited, "It is to be observed, that the statute does not say, in distinct terms, that all contracts or agreements, concerning the sale of lands, shall be in writing; all that it enacts is, that no action shall be brought, unless they are in writing, and there is no clause, which requires the dissolution of such contracts to be in writing." The case of Cummings v. Arnold simply decided, that the terms of a written contract for the sale of goods might be varied by a subsequent parol contract. The written agreement was to manufacture and deliver certain cloth at a fixed price per yard on eight months' credit. An agreement was subsequently made by parol to pay cash for the goods, upon a discount of five per cent. The court held the subsequent agreement to be good. The holding was sound, and is supported by numerous authorities. The statute requires the making of the contract to be by writing, but it does not undertake to regulate its performance, nor does it say, that it shall not be varied by parol. That is left to be decided by the general rules of law and evidence. (3 Law Reports; Common Law Series, p. 272; Cuff v. Penn, 1 Maule Sel. 21; Goss v. Nugent, 5 Barn. Ad. 65.) Thus, in the present case, I doubt not, that the terms of payment by Calkins to Blanchard could have been modified at the pleasure of the parties, and the original sale would have furnished a sufficient consideration for such arrangement.
I am of the opinion, however, that a transfer of the lumber by Calkins to Blanchard, after he had bought the lumber, and held it for three months in his possession, and used a portion of it in his business, does not come within this principle. It is a resale, and not a modification or a rescission of an existing contract. Where the title of the vendee has not been perfected for any reason, where there has not been a perfect delivery, where fraud has occurred, or where the contract, in any respect, remains executory, the idea of a rescission is quite appropriate. Where the same contract, in its essentials, is altered in its details, we at once appreciate the proposition of a modification. The contract before us does not come within either of these principles. It is a new contract simply. Being satisfied that he cannot pay for the lumber as agreed, Calkins proposes to Blanchard "to buy it back." This language expresses the precise legal idea that the law entertains of the proceeding. Calkins, being the owner, proposes to Blanchard to sell him the lumber, and Blanchard assents to the proposition, that he should buy it back. It might have been for the same price paid by Calkins, or for a less or a greater price, without affecting the character of the transaction. This is essentially a new contract, and not a rescission or modification of an existing contract. Numerous cases are found in the books, where the question of rescission has arisen, and, in all of them that I have been able to examine, with the exception of Salte v. Fuld (5 D. E. 214), it appears, that the property had never been delivered to the purchaser, or had been redelivered by the purchaser to the original vendor, or his agent. It was thus an executory contract simply, or a completed sale upon the new arrangement. In some cases, the question has arisen between the parties themselves, and in others the rights of creditors have intervened, but, in each of them, it will appear, either that no original delivery had been made, or that there had been an actual redelivery to, or for the benefit of, the claimant. ( Sturtevant v. Orser, 24 N.Y. 538; Ash v. Putnam, 1 Hill, 310; Bisby v. Taylor, 5 id. 577; Atkin v. Barrick, 1 Strange, 165; Salte v. Fuld, 5 D. E. 214.) In the case last cited, the goods were in the hands of the vendee's agent, from which they had never departed, when the vendee assented to their return to the vendor. There was an evident desire in that case to rescue the goods from the hands of the assignees of a bankrupt, and to place them where they honestly belonged. Upon a careful examination of the cases, I am of the opinion, that this case must be decided upon the language of the statute relating to contracts generally, and that there was not a sufficient delivery to make the resale a valid contract. (See, also, Miller v. Smith, 1 Mason, 437; Chapman v. Searle, 3 Pick. 38.)
Judgment should be affirmed, with costs.
All concur.