matured, it was held to create a collateral contract only, a breach of which would not amount to a repudiation of the contract of insurance; and in this case, where the full loan value of the policy had been exhausted by loans to the insured, it was held not a violation of any part of the policy to refuse a loan to the insured until prepayment of the next premium falling due, and that the insured was therefore entitled to no damages because of the insurer's refusal to make a further loan before the prepayment of such premium. A rescission was, however, allowed in Key v. National L. Ins. Co. (1899) 107 Iowa, 446, 78 N. W. 68, on the insurer's refusal to make a loan in accord with an agreement of its agent, as the taking of the insurance was held merely an incident, and the making of a loan the principal object, it appearing that the policy had been taken expressly for the purpose of securing a loan, and under an agreement with the agent that the policy need not be accepted unless a loan was made. With respect to the measure of damages it will be noted that in the re ported case (HUBBARD V. EQUITARLE LIFE ASSUR. Soc. ante, 886), upon its appearing that, after the insurer's refusal to make the loan, the insured borrowed the money applied for else where, upon collateral other than the policy, at a rate of interest higher than that provided for in the loan agreement of the policy, but the lowest obtainable, he was held entitled to recover the interest paid in excess of that provided for in the loan agreement for the same period, and also the reasonable value of his services in procuring the loan, but not entitled to compensation for the use of the securities employed. In New York L. Ins. Co. v. Pope (1902) 139 Ky. 567, 68 S. W. 851, it was held that the measure of damages was the difference between the interest at which the defendant agreed to furnish the money, and the rate, not exceeding the legal rate, at which a loan could have been obtained elsewhere; at least in the absence of an averment that the money was desired for a specified purpose known to the defendant, and that it could not have been obtained elsewhere. J. T. W. Sale R. F. BICKNELL et al., Respts., V. OWYHEE SHEEP & LAND COMPANY, Limited, et al., Appts. Idaho Supreme Court - October 31, 1918. (31 Idaho, 696, 176 Pac. 782.) seller holding for buyer. 1. Although the goods remain in the possession of the seller there may be a receipt by the buyer, if the former ceases to hold as owner and agrees to hold as bailee of the latter. [See note on this question beginning on page 902.] - Statute of Frauds delivery. 2. Delivery and acceptance of propperty sold under an executory contract of sale take the contract out of the Statute of Frauds. to purchase is such an act as constitutes an acceptance thereof, so as to take the contract out of the operation of the Statute of Frauds. Trial - jury ance. delivery and accept 4. Questions of sale, delivery, and acceptance sufficient to take a con tract of sale out of the Statute of Frauds are questions of fact for the jury, under proper instructions; and if there is sufficient evidence to justify the jury in reaching the conclusion that the goods were delivered and accepted unconditionally, their verdict should not be disturbed. Evidence sale of sheep sufficiency. 5. The delivery by the seller and acceptance by the buyer of sheep may be found from the fact that the seller stopped loading an intended shipment when the animals included in the sale were loaded, and accepted traveling expenses from the buyer to accompany the sheep to market, and the counting of them as a basis for settlement. Sale delivery what is. 6. No act of a seller of personal property alone can constitute a delivery taking the contract out of the Statute of Frauds, without a receipt and acceptance by the buyer. APPEAL by defendants from a judgment of the District Court for Twin Falls County (Babcock, J.) in favor of plaintiffs in an action brought to recover for the alleged conversion of certain sheep. Affirmed. The facts are stated in the opinion of the court. Messrs. Guthrie & Bowen, for appellants: The evidence is insufficient to sustain the verdict for the reason that no competent evidence was introduced to show any damage to the plaintiffs, nor any evidence from which damage could be computed, and particularly there was no evidence which would entitle the plaintiffs to recover the sum of $7,050.92. Walker v. First Nat. Bank, 43 Or. 102, 72 Pac. 645; Carlson v. Jordan, 4 Neb. (Unof.) 359, 93 N. W. 1130; Houston, E. & W. T. R. Co. v. Garrison, Tex. Civ. App. 37 S. W. 971; 38 Cyc. 2088, 2097; Sutton v. Great Northern R. Co. 99 Minn. 376, 109 N. W. 815; Sears v. Lydon, 5 Idaho, 358, 49 Pac. 122; Daggett v. Davis, 53 Mich. 35, 51 Am. Rep. 91, 18 N. W. 548; Gensburg v. Marshall Field & Co. 104 Iowa, 599, 74 N. W. 3; Harlan v. Brown, 4 Ind. App. 319, 30 N. E. 928; Walley v. Deseret Nat. Bank, 14 Utah, 305, 47 Pac. 147; Griggs v. Day, 136 N. Y. 152, 18 L.R.A. 120, 32 Am. St. Rep. 704, 32 N. E. 612; Meixwell v. Kirkpatrick, 29 Kan. 679; Davis v. Bliss, 10 L.R.A. (N.S.) 458, and note, 187 N. Y. 77, 79 N. E. 851; Bowers v. Bradley, 112 Iowa, 537, 84 N. W. 534; Whittler v. Sharp, 43 Utah, 419, 49 L.R.A. (N.S.) 931, 135 Pac. 112; Owen v. Williams, 38 Colo. 79, 89 Pac. 778. The evidence is insufficient to sustain the verdict for the reason that the sale, as made over the phone, was not a valid contract in view of the provisions of the Statute of Frauds. Moore v. Bixby, 4 Hun, 802; Malone v. Plato, 22 Cal. 103; Devine v. Warner, 76 Conn. 229, 56 Atl. 562; Mr. A. A. Fraser also for appellants. Messrs. Oppenheim & Hodgin and J. M. Parrish, for respondents: The facts alleged are sufficient to constitute a cause of action. Rauh v. Oliver, 10 Idaho, 9, 77 Pac. 20; Anderson v. War Eagle Consol. Min. Co. 8 Idaho, 789, 72 Pac. 671; McCormick v. Smith, 23 Idaho, 488, 130 Pac. 999; McMenomy v. Talbot, 84 Cal. 279, 23 Pac. 1099; Kibby v. Chitwood, 4 T. B. Mon. 91, 16 Am. Dec. 144; Hotchkiss v. Ladd, 36 Vt. 593, 86 Am. Dec. 679; Tucker v. Edwards, 7 Colo. 209, 3 Pac. 233; Davidson Grocery Co. v. Johnston, 24 Idaho, 343, 133 Pac. 929, Ann. Cas. 1915C, 1129. Questions of sale and delivery are questions of fact for the jury under proper instructions from the court. Where there is a conflict in the evidence, the verdict of the jury will not be disturbed. Hazard v. Cole, 1 Idaho, 276; Coffin v. Bradbury, 3 Idaho, 770, 95 Am. St. Rep. 37, 35 Pac. 715; Deeds v. Stephens, 8 Idaho, 514, 69 Pac. 534; Idaho Implement Co. v. Lambach, 16 Idaho, 497, 101 Pac. 951; Havlick v. Davidson, 15 Idaho, 787, 100 Pac. 91. If part performance of an oral agreement for the purchase of real estate will take the same out of the Statute of Frauds, part performance of an oral agreement to sell personal property will also remove the same from the operation of the Statute of Frauds. (31 Idaho, 696, 176 Pac. 782.) Jamison v. Simon, 68 Cal. 17, 8 Pac. 502; Born v. Shaw, 29 Pa. 288, 72 Am. Dec. 633; Snow v. Warner, 10 Met. 132, 43 Am. Dec. 419; Dauphiny v. Red Poll Creamery Co. 123 Cal. 549, 56 Pac. 451; Devine v. Warner, 75 Conn. 375, 96 Am. St. Rep. 211, 53 Atl. 782; Idaho Implement Co. v. Lambach, 16 Idaho, 497, 101 Pac. 951. When there is a meeting of the minds and the parties have assented to all the terms of the contract, the mere fact that the contract was to be afterwards reduced to writing, and the writing is not signed, does not invalidate the oral contract, the obligations of which have already attached. 6 R. C. L. p. 618, 39; Williams v. A. C. Burdick & Co. 63 Or. 41, 125 Pac. 846; Sanders v. Pottlitzer Bros. Fruit Co. 144 N. Y. 209, 29 L.R.A. 431, 43 Am. St. Rep. 760, 39 N. E. 75; Western Roofing Tile Co. v. Jones, 26 Okla. 209, 109 Pa. 227, Ann. Cas. 1912B, 127. In a motion for nonsuit, after the plaintiff has rested his case, the defendant is deemed to admit the truth of all the facts which the evidence tends to prove, and the evidence must be interpreted most strongly against the defendant. Havlick v. Davidson, 15 Idaho, 787, 100 Pac. 91; Barton v. Dunlap, 8 Idaho, 82, 66 Pac. 832; Fleming v. Baker, 12 Idaho, 346, 85 Pac. 1092; Culver v. Kehl, 21 Idaho, 595, 123 Pac. 301; Later v. Haywood, 12 Idaho, 78, 85 Pac. 494; Allen v. Phoenix Assur. Co. 12 Idaho, 653, 8 L.R.A. (N.S.) 903, 88 Pac. 245, 10 Ann. Cas. 328; Pilmer v. Boise Traction Co. 14 Idaho, 327, 15 L.R.A. (N.S.) 254, 125 Am. St. Rep. 161, 94 Pac. 432; Colvin v. Lyons, 15 Idaho, 180, 96 Pac. 572; Mineau v. Imperial Dredge & Exploration Co. 19 Idaho, 458, 114 Pac. 23. Budge, Ch. J., delivered the opin ion of the court: This is an action for the alleged conversion of certain sheep. The cause was tried to a jury, and a verdict returned in favor of respondents for the amount prayed in the complaint. This appeal is from the judgment entered on the verdict. It appears that the appellant J. L. Gray was president and manager, and S. D. Phillips secretary, of the Owyhee Sheep & Land Company, Limited, at the time of the transaction involved herein. Some time prior to July 3, 1914, Bicknell had a conversation with Phillips concerning the sale of the company's 1914 crop of lambs. At that time Phillips thought they would sell the lambs to another party. Bicknell wanted a chance to buy them if the other deal should not be consummated. On July 3, 1914, Bicknell, learning that the lambs, or part of them, were being shipped at Rogerson, called Phillips on the telephone, inquired if the lambs were sold, and was told they were not, but that the company was making a shipment, which was then being loaded. Bicknell wanted to buy them, and offered $3.50 per head. Phillips asked $3.60. Bicknell offered to "split the difference" and take the lambs that were being loaded, together with those that were still on the range, at $3.55 per head. This price was satisfactory to Phillips, but he said he would have to take the matter up with Gray, the company's manager. Shortly thereafter Gray called Bicknell on the telephone, and it was agreed that he should take the lambs at $3.55 per head, f. o. b. Rogerson. There were about 4,325 head in the shipment which was then being loaded, Bicknell agreeing to accept Gray's count. The remainder of the lambs on the range were to be delivered on or before September 10, 1914. There is a dispute in the evidence as to what notice was to be given for the delivery of the latter. The shipment then being made had already been consigned by appellant company to Rosenbaum Brothers & Company, commission brokers at South Omaha. The shipment was not reconsigned, but was allowed to stand under this consignment at Bicknell's suggestion. After the terms had been agreed upon they were repeated between Gray and Bicknell over the telephone, the latter testifying that during the conversation he wrote them down on one of his contract forms. Bicknell was After the telephone conversation between Gray and Bicknell, the latter wrote Rosenbaum Brothers & Company, advising them that he had purchased these lambs, and in structing them to use their own judgment in regard to the sale thereof, inclosing a draft for $5,000 and a draft to be filled in for whatever Gray's count should amount to at $3.55 per head, plus $25 expenses, and also inclosed the contract to be delivered to Gray. When Gray and Phillips reached Omaha with the lambs, Rosenbaum Brothers & Company turned the contract over to Gray, who refused to sign the same, for the reason, as he stated, that the contract provided that the lambs on the range were to be delivered on or before September 10, 1914, at the option of the buyer, but that according to his understanding the contract should have provided for ten or twelve days' notice. He refused to accept the $5,000 draft, wired Bicknell that he was returning the contract because it was not as agreed upon, and sent him a letter, inclosing the contract, and setting out his objections thereto. Rosenbaum Brothers & Company notified Bicknell that appellants refused to sign the contract, for the reason that it was not properly drawn in regard to notice of delivery. Bicknell instructed them to withhold all of the proceeds over and above the $3.55 per head, plus $25 expenses. The lambs were sold by Rosenbaum Brothers & Company for $25,701.37, which was alleged in the complaint to have been the reasonable value of the lambs, and which allegation of value is admitted by failure to deny the same in appellants' answer. Payment was made to the appellants on the basis of $3.55 per head, according to Gray's count, plus $25 expenses; a portion of the payment being made to creditors of the Owyhee Sheep & Land Company, including Rosenbaum Brothers & Company, under instructions from appellants. The balance of the proceeds, after deducting expenses, freight, and commissions, amounting to $7,050.92, was retained by Rosenbaum Brothers & Company, who declined to (31 Idaho, 696, 176 Pac. 782.) nell and Gray over the telephone, the latter stated in substance that they would stop loading and go on with what they had loaded; that they would not load any more, since he had sold to Bicknell, and informed Crouse, who had a number of lambs that he intended to include in Gray's shipment, that he could sell to Bicknell for the same price. Thereupon Crouse stated he would not sell to Bicknell, and would not ship his sheep, but would return the same to the range with Gray's sheep that he was not shipping. pay the same to either party, pend- the conversation had between Bicking the result of this litigation. While appellants' brief contains many specifications of error, the controlling question in the case is: Was there a delivery of the 4,325 head of lambs by appellant Owyhee Sheep & Land Company, Limited, to respondents, at Rogerson, Idaho, on the 3d day of July, 1914, and an acceptance of the same by respondents? If there were no such delivery and acceptance, respondents' case must fail under appellants' plea of the Statute of Frauds, to wit, Rev. Codes, § 6009, for it is conceded that there was no written contract. If, on the other hand, there were such a delivery and acceptance, respondents should prevail under the record presented to us, for in that event the Statute of Frauds would have no application. The law is well settled that delivery and acceptance of property sold Sale-Statute of Fraudsdelivery. under an executory contract of sale takes it out of the Statute of Frauds. Coffin v. Bradbury, 3 Idaho, 770, 95 Am. St. Rep. 37, 35 Pac. 715. While there is authority to the effect that the same person cannot act as agent of the seller to negotiate the sale and as the agent of the buyer to receive and accept the goods (Caulkins v. Hellman, 14 Hun, 330, id. 47 N. Y. 449, 7 Am. Rep. 461), the prevailing modern rule, and the one applicable to the facts before us, seems to be that "although the goods remain in the possession of the seller, yet there may be a receipt by the buyer if the seller ceases to -seller holding hold as owner and agrees to hold as the bailee of the buyer with his consent." 20 Cyc. 250; Devine v. Warner, 96 Am. St. Rep. 211, and extended note thereto, 75 Conn. 375, 53 Atl. 782; Rappleye v. Adee, 65 Barb. 589; Green v. Merriman, 28 Vt. 801; Janvrin v. Maxwell, 23 Wis. 51; Ex parte Safford, 2 Low. Dec. 563, Fed. Cas. No. 12,212. for buyer. The evidence shows that, after The jury was justified in reaching the conclusion that Gray did not ship all the sheep he intended to ship at that time, or make up a shipment out of the sheep that he had at Rogerson, including Crouse's sheep. This action on Gray's part, coupled with the agreement to accept $25 for his expenses in accompanying the sheep to Omaha, and the count at Montpelier, was sufficient evidence to Evidence-sale justify the jury in of sheepfinding that there sufficiency. was a delivery on the part of the Owyhee Sheep & Land Company and a receipt by respondents. Furthermore, the evidence is clear that Bicknell was buying the sheep to immediately resell them, of which fact appellants had full knowledge; they had already been consigned by appellants to a commission broker at South Omaha for that purpose, and this consignment was allowed to stand at Bicknell's suggestion, who immediately, and before the lambs reached South Omaha, notified the commission brokers that he had purchased, and instructed them to sell, these lambs, using their own judgment. While it is true that no act of a seller of personal property alone can constitute a deliv Sale-delivery ery, taking the con- -what is. |