SMILEY v. BARKER, 83 F. 684

SANBORN, Circuit Judge, after stating the case as above, delivered the opinion of the court. The principal complaint concerning the trial of this case is that the court below admitted evidence of the oral agreement of October, 1893, which tended to modify the written contracts for the sale of the sheep, held that oral agreement valid, and rendered this judgment of $6,000 and interest for its breach, over the repeated objections of the plaintiff in error that this contract was void under the statute of frauds, and without consideration.

A careful examination of the record has convinced us, however, that the invalidity of this oral agreement is not necessarily fatal to the judgment, and for these reasons: 1. It is assigned as error that the testimony of Barker and another to the terms of the oral agreement was erroneously received, because that contract fell under the ban of the statute of frauds, and was without' consideration. Conceding that parol agreements modifying written contracts that are within the statute of frauds are themselves within that statute, and cannot be enforced (Emerson v.

Slater, 22 How. 28, 42, and cases there cited; Swain v. Seamens, 9 Wall. 254, 271), and that the plaintiff in error had not waived this defense by his answer, we are still of the opinion that the court rightfully received this evidence on another ground. On October 1, 1893, the plaintiff in error was bound, under written contracts, to deliver 6,000 sheep to the defendant in error at Medicine Bow, Wyo., and the latter was bound to pay him about $24,000 for them on delivery. Thereupon he wrote to Barker, and suggested to him that he should take only 3,000 instead of 6,000 sheep that year.

He then went to Barker’s ranch, at Silver Creek, Neb., and told him that he would ship the 3,000 sheep from Medicine Bów Station to Chicago, by way of Silver Greek; that he would stop and feed them there; and that, upon the receipt of the $10,000 when he arrived there, he would deliver these sheep to Barker; and would defer the delivery of the remaining 3,000 and the payment of the unpaid balance under the written contracts until May 1, 1894. Barker assented to this proposition, and proceeded to raise the $10,000.

Smiley went to Medicine Bow; and, in order to enable him to ship the 3,000 sheep to Silver Creek, he wrote Barker for an order for the delivery of the 18 cars which he had sent for the transportation of the sheep before the conversation about the delivery of the 3,000 sheep at Silver Creek.

Barker relied on these letters and statements of Smiley, and was thereby induced to stay away from Medicine Bow about November 1, 1893, when he would otherwise have been there to accept delivery of the sheep and pay for them, to send him the order for the cars, to raise the $10,000, and to await his arrival at Silver Creek with the sheep. The statute of frauds may not be used to perpetrate a fraud. One cannot take advantage of his own wrong. One may not so speak and act as to knowingly induce another to change his position, and then avail himself of that change to his prejudice.

The letters and statements of Smiley in October lulled Barker into security, and prevented his attendance at Medicine Bow to receive or pay for the sheep on November 1,1893; and he cannot be permitted to take advantage of this absence, which he himself had induced, to default Barker on his contract, and charge him with damages. The letters and conversation constitute a waiver of the delivery and payment at the time and place named In the written contracts, and, although they did not evidence an enforceable agreement, they were all admissible to establish this waiver. Bishop, in his work on Contracts, says, at

section 792: “Waiver is where one in possession of any right, whether conferred by law or by contract, and of full knowledge of the material facts, does or forbears the doing of something inconsisiont with the existence of the right or of his intention to rely upon it.

Thereupon he is said to have waived it, and he is precluded from claiming anything by reason of it afterwards.” And the supreme court has expressly held that the strict performance of a contract subject to the statute of frauds may he waived by words and acts inconsistent with an intention to require it which have induced the other contracting party to omit it. Swain v. Seamens, 9 Wall. 254, 272; Dodsworth v. Iron Works, 31 U. S. App. 292, 299, 13 C. C. A. 552, 554, and 66 Fed. 483, 486; Browne, St. Frauds, §§ 424, 425; Railroad Co. v. Ristine, 40 U. S. App. 579, 582, 23 C. C. A. 13, 14, and 77 Fed. 58, 60. 2.

It is assigned as error that the court below found that the oral agreement of October, 1893, was a valid contract, and was violated, and that it based its judgment upon this contract and its breach. But, if we discard this conclusion altogether, the other findings of the court are not insufficient to sustain the judgment.

They disclose the facts that under the written contracts themselves, without any waiver or modification, the sheep were not to be delivered nor paid' for until about November 1, 1893, and that the plaintiff in error, without notice or tender of the sheep or demand of payment, sold 2,750 of them to a stranger on that day, and thus disabled himself from fulfilling the contracts. This was a repudiation of the agree-meats before the defendant in error could have been placed in default under the exact terms of the written contracts.

The word “about,” before the date of delivery and payment in these contracts, has significance, and must have effect. “About” November 1st does not mean “on” November 1st, and this word gave to the defendant in error at least until midnight of that day in which to perform his contract. Moreover, the findings disclose the fact, as we have seen, that the plaintiff in error had waived strict performance at the time and place named in the written contracts, and the defendant in error had changed his position in reliance upon that waiver.

Smiley could not then default Barker for a failure to comply with the written contracts without giving him a reasonable notice that such a compliance would he required. The resfilt is that, if we disregard the conclusion of the court relative to the oral agreement, the other findings are sufficient: to sustain the judgment either upon the face of the written agreements without considering the waiver, or upon the basis of the waiver. A just judgment, which is warranted by the record and the facts, will not be overthrown because it was based on the wrong reason (Pennsylvania Co. v. Versten [Ill. Sup.] 30 N.

E. 540, 541; White v. Railroad Co. [Ind. Sup.] 23 N. E. 782, 786; Railway Co. v. Batsell [Tex. Civ. App.] 34 S. W. 1047); and this judgment cannot be reversed on account of the assignments of error which were leveled at the rulings of the court relative to the oral agreement.

It is assigned as error that the court permitted Barker to testify that he treated the purchase price he had paid as “forfeited"’ when Smiley had sold the sheep, and that it permitted him to recover the, amount he had paid on the contract, instead of restricting him to , jo difference between the value of the sheep and the amount he was owing.for them at the time of the repudiation of the agreement. But Mr. Justice Clifford well said, in Nash v.

Towne, 5 Wall. 689, 701: “Where the seller of goods received the purchase money at the agreed price, and subsequently refused to deliver the goods, and it appeared at. the trial that he had converted the same to his own use, it was held at a very early period that an action for money had and received would lie to recover back the money; and it has never been heard in a court of justice since that decision that there wac any doubt of its correctness.

Anon., 1 Strange, 407.”- The refusal of the vendor to deliver the goods purchased, and his conversion of them to his own use before the time of delivery had passed, are a distinct repudiation of the contract. It is a notice to the vendee that he will not abide by and will not perform it. It gives to the purchaser the option to accept the repudiation as a rescission of the contract, and to sue him on the implied assumpsit for money had and received, on the ground that the consideration for the payment he has made has failed, or to sue him for damages for the breach of the agreement.

The defendant in error has clpsen the former alternative, and the court below committed no error in permitting him to testify to his election, and in allowing him to recover the amount he had paid on the repudiated contracts of sale, with interest. Ankeny v. Clark, 148 U. S. 345, 353, 13 Sup. Ct. 617; Eames v. Savage, 14 Mass. 425; McCrelish v. Churchman, 4 Rawle, 26; Baston v. Clifford, 68 Ill. 67; Stahelin v. Sowle, 87 Mich. 124, 49 N. W. 529; 2 Smith, Lead. Cas. 30 (7th Am. Ed. note); Withers v. Reynolds, 2 Barn. & Adol. 882; Planche v. Colburn, 8 Bing. 14; Palmer v.

Temple, 9 Adol. & E. 508; Tiffany, Sales, 235. Finally, it is assigned as error that the court below found a certain fact not warranted by the evidence; that it failed to find another fact which was established by the teslimony; and that each one of its six conclusions of law was wrong. In a case in which a jury has been waived, the only question relative to the findings of a trial court that is open for consideration in a federal appellate court is whether or not those findings are sufficient to sustain the judgment.

We have already considered that question in this case, and reached the conclusion that the findings of the court below are ample. No question of the sufficiency of the evidence to sustain these or other findings can be considered by this court. Stanley v. Supervisors, 121 U. S. 535, 547, 7 Sup. Ct. 1234; Wile v. Bank, 36 U. S. App. 165, 167, 17 C. C. A. 25, 26, and 70 Fed. 138; Insurance Co. of North America v. International Trust Co., 36 U. S. App. 291, 303, 17 C. C. A. 616, 618, and 71 Fed. 88, 90; Searcy Co. v. Thompson, 27 U. S. App. 715, 13 C. C. A. 349, and 66 Fed. 92.

The judgment below must be affirmed, with costs, and it is so ordered.