Opinion
No. 2728
May 23, 1956
1. SALES. PARTIES TO TRANSACTION. In action to recover price of rock wool insulating material allegedly sold by plaintiff to defendant, evidence sustained finding that transaction was between plaintiff and defendant rather than between defendant and another. Page 497
2. APPEAL AND ERROR. EVIDENCE EXAMINED. A reviewing court can only examine evidence for purpose of determining whether judgment is supported by substantial evidence. Page 497
3. TRIAL. AS TO CREDIBILITY OF WITNESSES. On trial before court, court is the sole judge of the credibility of the witnesses and is entitled to evaluate their testimony. Page 499
Action for contract price of four loads of rock wool insulating material. The defendant filed a counterclaim. The District Court, Fremont County, Franklin B. Sheldon, J., rendered judgment for plaintiff, and defendant appealed. The Supreme Court, Parker, J., held that evidence was sufficient to sustain finding that transaction was between plaintiff and defendant and was not between defendant and another.
Affirmed.
Appeal from the District Court of Fremont County, Wyoming; the Honorable Franklin B. Sheldon, Judge.
For the defendant and appellant, the cause was submitted upon the brief and also oral argument of W. Randall Boyer and L.A. Crofts, both of Lander, Wyoming.
For the plaintiff and respondent, the cause was submitted upon the brief and also oral argument of W.M. Haight of Riverton, Wyoming.
POINTS OF COUNSEL FOR APPELLANTWhen an offer is made to a party personally it can be accepted by him alone, and is not transferrable by him to another; nor can it be accepted by such other without the offerors consent. 17 C.J.S. 372; Strauss Co., Inc. v. Berman, 147 A. 85, Penna. 1929; It is every man's right to select the person with whom he will enter into contractural relations. Pollard v. Kinney, et al., 10 P.2d 836, Kansas, 1932. The general rule that a person has a right to select and determine with whom he will contract and cannot have another person thrust on him without his consent is applied to sales. A private trader is privileged to exercise his own pleasure as to the parties with whom he will deal. One of the indispensable elements of a contract is a mutual consent of the contracting parties, and to support a recovery for goods sold and delivered, there must be a contract, either express or implied, between the person who ordered and the one who supplied the goods. Thus, where on order for goods is sent to one person and is turned over by him to a third person by whom the goods were shipped, if they are received by the buyer without knowledge that the order has been so filled, there is no liability on the part of the buyer to the person by whom the order was so filled. 46 A.J. 233.
POINTS OF COUNSEL FOR RESPONDENTWhere one having the right to accept or reject a transaction takes and retains benefits thereunder, he ratifies the transaction, is bound by it, and cannot avoid its obligations or effect by taking a position inconsistent therewith. 31 C.J.S. 347 Estoppel #109. Under Uniform Sales Act providing that the buyer shall be deemed to have accepted the goods does any act with relation to them which is inconsistent with the ownership of the seller, the retention and continued use of goods delivered may constitute acceptance. 55 C.J. 499. An acceptance will ordinarily be implied if the buyer retains the goods and resells them or a portion of them or attempts to sell them. 55 C.J. 500. The acceptance may be conditional in which case it will not constitute a binding acceptance unless the condition is complied with, but where the condition is fulfilled, the acceptance becomes absolute. Unless procured by fraud or mistake, an absolute acceptance is conclusive and binding on the buyer and cannot be withdrawn. It renders the buyer liable for the price, even though the goods delivered were not contracted for, and precludes him from asserting defects in the contract of sale, or default in the performance of the seller's obligations in respect to delivery, such as those relating to place and time, or from compliance of defects as to the quantity or quality of the goods delivered. The acceptance relates back to the time of the sale. 55 C.J. 503.
OPINION
Woolsulate, Inc., brought an action against Fremont Lumber Company for $3,105.75 allegedly due for 3,030 forty-pound bags (four loads) of rock wool, insulating material at the price of $1.02 1/2 per bag. Defendant defaulted, and a judgment was entered for the amount claimed plus interest; but, thereafter, on defendant's motion, the court held that the default judgment should be vacated and defendant was permitted to respond to plaintiff's petition.
Defendant in its answer set up five defenses: (1) denying the petition generally; (2) setting out a counterclaim by alleging that plaintiff through its duly authorized agent, Insulations, Inc., purchased goods, wares, merchandise, and services from defendant at the market value thereof, on which there remained due the amount of $3,865.78, and praying judgment therefor; (3) alleging that plaintiff, a foreign corporation not domesticated in Wyoming, was unauthorized to do business here; (4) alleging that the price of rock wool was unreasonably high; and (5) admitting defendant's receipt of the rock wool but stating that the same was received from Insulations, Inc. — not from plaintiff.
The case came on regularly for trial before the court, and there was a finding and judgment for plaintiff in the amount of $3,105.75 plus interest. Defendant has appealed, filing some nine specifications of error which may be summarized as (1) charging that the judgment is unsupported by the evidence and contrary to law and (2) complaining because of the refusal of the court to admit certain evidence relating to the alleged purchase of goods, wares, merchandise, and services by plaintiff from defendant through plaintiff's purported agents, Insulations, Inc.
The gist of the defense is that "plaintiff by * * * its duly authorized agent * * * Insulations, Incorporated, purchased from the defendant goods * * * between the dates of March 28, 1949, and February 19, 1951, for the agreed, reasonable and market value thereof on which account there remains due and owning from plaintiff to defendant a balance * * * of * * * $3,865.78," and that this sum is in effect an offset to the bill which plaintiff claims. Defendant insists that it purchased the insulating material for which suit has been brought solely in an effort to recover payment of the amount previously owed by plaintiff as herein mentioned. The situation is somewhat confused by the fact that both the plaintiff, Woolsulate, Inc., and Insulations, Inc., are Utah companies with offices at the same place, 1349 South Main Street, Salt Lake City, Utah, and that C.H. Carlquist is manager of Woolsulate, Inc., and president of Insulations, Inc.
The salient evidence may be summarized as follows: Defendant's president, Beckwith, says that on June 27, 1950, he went to the Salt Lake City joint offices of Insulations, Inc., and Woolsulate, Inc., "purposely to try and make some arrangement whereby we could credit the account," and that he did not then know Carlquist was president of Insulations, Inc. Beckwith further testified that after he returned to Lander he called Carlquist by telephone several times, arranging that the material would be available when the truck arrived; that there were certain letters between Carlquist and defendant; that thereafter defendant's truck was sent to Utah for the four truck loads of insulating material on approximately the dates stated in plaintiff's petition; and that defendant credited the amounts received to the account of Insulations, Inc.
At the point of delivery, a bill was made up for each of the four loads; and the four bills were signed by Bob Moore, an employee of defendant. The first bill contained the notation in red pencil, "picked up by our truck," the second in pencil, "picked up at plant," while the other two contained no notation as to the place of delivery. Defendant in its brief says that "the truck driver was sent to a plant or warehouse to pick up the wool"; and the general discussion at the time of the argument indicates that the insulating material was actually picked up at plaintiff's plant at Midvale, Utah. Beckwith testified: "We sent Bob Moore with our truck to this address at Salt Lake City. * * * Where he picked it up I wouldn't know and I don't know as he ever said where he got it. We supposed it came from Insulations, Incorporated."
Plaintiff introduced in evidence Exhibits 12 to 14, and 15 to 19, inclusive, purporting to be copies of letters sent from plaintiff to Fremont Lumber Company; Exhibit 15, purporting to be a telegram from defendant to plaintiff; and Exhibits 6 to 9, inclusive, purporting to be copies of invoices from plaintiff to defendant. These writings seemingly indicate that the transaction was between the plaintiff and defendant. There was no reference to Insulations, Inc., in the telegram, invoices, or the first five letters; and the mention of that company in the last two letters was merely an effort of the writer to distinguish Insulations, Inc., from Woolsulate, Inc.
The responsibility and authority of this court in an appeal from a finding and judgment of a trial court has been clearly delineated on many previous occasions.
"* * * We have repeatedly held that this court would only examine the evidence for the purpose of determining whether the judgment was supported by substantial evidence. Edwards v. Willson, 30 Wyo. 275, 219 P. 233; Lellman v. Mills, 15 Wyo. [149] 152, 87 P. 985." Boyle v. Mountford, 39 Wyo. 141, 149, 270 P. 537, 539.
See also Marshall v. Rugg, 6 Wyo. 270, 44 P. 700, 45 P. 486, 33 L.R.A. 679; Christensen v. McCann, 41 Wyo. 101, 282 P. 1061.
In this case, defendant admits that the insulating material was received by its representative from plaintiff and that the bill for the merchandise was not paid. The sole defense is that defendant transacted the business with Insulations, Inc., and not with plaintiff; but defendant has presented no evidence as a basis for this contention, except the testimony of a conversation between Carlquist and Beckwith. Carlquist is alleged to have made a statement which seems to us rather ambiguous, "If we can't pay you we will give you wool to take care of the account." Defendant does not even claim that anything was said about the time, place, conditions, or terms of the furnishing of wool. Throughout the suit, plaintiff has maintained that defendant's denials of indebtedness were inconsistent with its conduct at the time of the transaction, and as above noted, introduced defendant's telegram to plaintiff dated September 21, 1950, four invoices, and a number of letters, all addressed by plaintinff to defendant. The telegram read: "Advise by wire if we can pick up 250 sacks wool tomorrow."
However doubtful we might be that the trial court could have properly granted the judgment which defendant desires, a determination of that fact is beyond the scope of this decision. Our only interest here is to ascertain whether or not the evidence before the court was sufficient to warrant the decision which was made. As appears from the above analysis, we think it was.
Defendant quotes 17 C.J.S. 372:
"When an offer is made to a particular person it can be accepted by him alone, and is not transferable by him to another; nor can it be accepted by such other without the offerer's consent." and 46 Am.Jur. 233:
"* * * a person has a right to select and determine with whom he will contract and cannot have another person thrust on him without his consent * * *."
as authority for his argument that defendant did not contract with Woolsulate, Inc. We think that this question is one of fact and that oracular quotations of the legal rules mentioned are not more than a guide which the trial court might have used in determining what the parties actually did, but which are of no assistance in the reviewing court.
The trial court was the sole judge of the credibility of the witnesses and was entitled to evaluate their testimony. See Caswell v. Ross, 27 Wyo. 1, 188 P. 977; Gould v. James, 43 Wyo. 161, 299 P. 275.
We think the evidence must be held sufficient to sustain the findings and judgment. The judgment is affirmed.
Affirmed.
BLUME, C.J., and HARNSBERGER, J., concur.