ALTOONA PORTLAND CEMENT CO. v. BURBANK et al.

ALTOONA PORTLAND CEMENT CO. v. BURBANK et al.
1914 OK 463
143 P. 845
44 Okla. 75
Case Number: 3045
Decided: 10/13/1914
Supreme Court of Oklahoma

ALTOONA PORTLAND CEMENT CO.
v.
BURBANK et al.

Syllabus

¶0 1. FRAUDS, STATUTE OF--Oral Acceptance of Order--Validity--Breach of Contract. An oral acceptance by a seller of a buyer's written order for goods at a price not less than $ 50 is invalid (although only as against such seller and to the limited extent that no demand can ordinarily be predicated upon its breach), under section 847, St. Okla. 1890 (section 941, Rev. Laws 1910), which requires some note or memorandum of such contract in writing to be subscribed by the party charged (in the action), or his agent, to be valid.
2. SAME--Sale of Personalty--Pleading. A buyer's bill of particulars against a seller demanding $ 50 or more as the detriment caused by the breach of the defendant's oral agreement to deliver goods ordered of him by the plaintiff does not state a cause of action by reason of section 847, St. Okla. 1890 (section 941, Rev. Laws 1910), making such agreement invalid only as against such seller and to the extent that no demand against him can ordinarily be predicated thereon.
3. SAME--General Denial. A motion to direct a verdict for defendant raises the question of the validity of a contract under the statute of frauds (section 847, St. Okla. 1890; section 941, Rev. Laws 1910) when liability upon such contract is denied either by a general denial, a special denial of compliance with said statute, or a special affirmative plea of the statute.
4. SAME--Waiver of Statute--Presumption. A failure to demur to a bill of particulars which appears on its face to predicate its demand upon a contract invalid in respect to such demand under the statute of frauds (section 847, St. Okla. 1890; section 941, Rev. Laws 1910) is not a waiver of defendant's right to avail himself of this statute.
5. APPEAL AND ERROR --Instructions --Pleading-- Presumption-- Justices of the Peace. It will be presumed that the defendant's oral pleadings, in a case appealed from a justice of the peace to the county court, were sufficient to warrant the latter trial court's instructions to the jury.

Carl Kruse, for plaintiff in error
H. Z. Wedgwood and E. L. Swigert, for defendants in error

THACKER, C.

¶1 Plaintiff in error will be designated as defendant, and defendants in error as plaintiffs, in accord with their respective titles in the trial court. The essential facts, when not stated, are necessarily presupposed by this opinion and will be so understood. The defendant, as seller, is not bound by a merely oral acceptance of plaintiffs' order for 500 barrels of cement at $ 1.17 per barrel, nor liable for damages for failure to deliver the same, as such a contract is invalid under section 847, St. Okla. 1890 (section 941, Rev. Laws 1910). Wilkerson v. Patton Sash, Door & Building Co., 10 Ga. App. 697, 73 S.E. 1088; Cable Co. v. Hancock, 2 Ga. App. 73, 58 S.E. 319; Foster v. New York & T. Land Co., 2 Tex. Civ. App. 505, 22 S.W. 260; King v. Cheatham, 104 S.W. 751, 31 Ky. L. Rep. 1176; Wardell v. Williams, 62 Mich. 50, 28 N.W. 796, 4 Am. St. Rep. 814; Haydock v. Stow, 40 N.Y. 363. Also, as establishing the converse or other phases of this proposition, see Baker v. Haswell & Taylor,

¶2 By the Court: It is so ordered.