84

attempt to show the buyer a bankrupt, there must also be evidence that there was no change in his financial condition between the date of the bankruptcy and the time of the sale. Upon the question of the intent not to pay for goods purchased it may also be shown that the buyer purchased on credit and immediately upon their receipt had them delivered to a creditors as part payment upon another debt; and this evidence of intent not to pay is strengthened where the goods are turned over to the creditor below cost.86 Where the vendor attempts to avoid a sale on the ground of fraud or misrepresentations, evidence of third parties who have sold goods to the buyer showing that the buyer knew himself to be insolvent or unable to pay has been held competent in some cases as tending to prove such fraud, and where an attempt is made to show that a purchaser obtained the goods because of false representations, it has been held that the vendor may show other false representation to other parties about the same time, as tending to show that the goods were obtained through fraud.ss Fraudulent acts committed by the buyer may be shown in a proper case to prove intent to defraud. So, where the seller attempts to prove that the goods were obtained through fraudulent representations, evidence that the goods were bought and received under such circumstances that they could not be sold at a profit or paid for is admissible to prove or as tending to prove fraudulent intent," and there are many circumstances and actions of the buyer that may be shown as tending to show fraud.91 The statements of a third party,

84 Hosmer v. Oldham, 122 Mass. 551.

85

Slagle & Co. v. Goodnow, 45 Minn. 531, 48 N. W. 402.

88 Loeb v. Flash, 65 Ala. 526; Slagle & Co. v. Goodnow, 45 Minn. 531, 48 N. W. 402.

89

ST Rowley v. Bigelow, 29 Mass. 307, 23 Am. Dec. 607; but see, Wheeler & Wilson Mfg. Co. v. Keeler, 65 Hun (N. Y.) 508, 20 N. Y. S. 388; Bradley v. Obear, 10 N. H. 477; Peters v. Hilles, 48 Md. 506.

60 N. W. 217; Hedges v. Payne, 63 Hun (N. Y.) 630, 17 N. Y. S. 809.

90 Kline v. Baker, 106 Mass. 61; Ross v. Miner, 67 Mich. 410, 35 N. W. 60; Schmidt v. Schanzlin, 21 Jones & S. (N. Y.) 498; Brower v. Goodyer, 88 Ind. 572; Higgins v. Lodge, 68 Md. 229, 11 Atl. 846, 6 Am. St. 437.

91 Mooney v. Davis, 75 Mich. 188, 42 N. W. 802, 13 Am. St. 425; Cole v. Putnam, 62 N. H. 616; Whitney Wagon Works v. Moore, 61 Vt. 230, 17 Atl. 1007; Starr v. Stevenson, 91 Iowa 684, 60 N. W. 217; Hedges v. Payne, 63 Hun (N. Y.) 630, 17 N. Y. S. 809; Brower v. Goodyer, 88 Starr v. Stevenson, 91 Iowa 684, Ind. 572; Cooper Mfg. Co. v. De

89 Hawes V. Dingley, 17 Me. 341; Schofield v. Shiffer, 156 Pa. St. 65, 27 Atl. 69; Bliss v. Sickles, 142 N. Y. 647, 36 N. E. 1064.

which are the means by which the credit is obtained, if made without knowledge, authority or consent of the buyer, are not ordinarily admissible as against him to prove fraud.92 But the statements of the broker or salesman who procured the sale, falsely recommending the quality of the article, have been held admissible to show that the sale was fraudulently procured.93 Evidence that the goods were as represented, that they were worth all the defendant paid for them, or, in general, any circumstance which will show that such sale was not procured by false representations, may be received, but it has been held that statements of the seller before the sale may be shown to prove fraud, where the seller denies any knowledge of defectiveness. And evidence of statements to commercial or mercantile agencies and ratings on their books with the knowledge of the purchaser has been held admissible on the question of intent."

95

94

§ 2625. Price-Consideration.-When the testimony is conflicting as to the price agreed upon in a sale, it is often proper to show the value of the articles at the time of the sale as tending to show the real contract price," and the price paid for other orders for the same articles may be competent. So, where there is no direct evidence of a price agreed upon, a schedule of prices may be used if submitted to the buyer and it can be shown that the buyer bought knowing these prices.99 As elsewhere shown, the true consideration of a contract, at least when the contract is not under seal and the consideration is not contractual, may be shown by parol,100 and this rule has been applied to a bill of sale.101 So, at least as between the parties, failure or want

92 Morris v. Wells, 54 Hun (N. Y.) 634, 7 N. Y. S. 61; Bradley v. Obear, 10 N. H. 477.

93 Mayer v. Dean, 115 N. Y. 556, 22 N. E. 261, 5 L. R. A. 540; Hirschberg Optical Co. v. Dalton, Nye & Cannon Co., 7 Utah 433, 27 Pac. 83.

Irvine v. Grady, 85 Tex. 120, 19 S. W. 1028; Pharo v. Beadleston, 2 Misc. (N. Y.) 424, 19 N. Y. S. 816, 21 N. Y. S. 989.

5 Dowling v. Lawrence, 58 Wis. 282, 16 N. W. 552.

Taylor v. Mississippi Mills, 47 Ark. 247, 1 S. W. 283; Lindauer v. Hay, 61 Iowa 663, 17 N. W. 98; see also, Zucker v. Korpeles, 88 Mich. 413, 50 N. W. 373.

"Fry v. Tilton, 11 Neb. 456, 9 N. W. 638; Miller v. Lamb, 22 Minn. 43.

98 Julius King Optical Co. V. Treat, 72 Mich. 599, 40 N. W. 912.

" Llewellyn Steam Condenser Mfg. Co. v. Malter, 76 Cal. 242, 18 Pac. 271.

100 See Vol. I, § 582.

101 Eckles v. Carter, 26 Ala. 563.

of consideration may be shown.102 In an action to recover for the sale for goods, evidence that the goods were worthless is admissible, to prove a failure of consideration.103 The mere fact that goods did not come up to expectation, however, or when represented and advertised to be of certain amount, saying nothing of quality, does not prove failure of consideration,104 but if not of the quality represented, that may be a partial failure of consideration.105 Where the defendant denies his liability and claims that he bought the goods of another, evidence of indebtedness to the third party for the same article has been held admissible.106 So, it has been held that where goods are delivered to one party and charged to the account of another, the defendant who received such goods may show what arrangements he had with such person;107 and that evidence of the defendant's credit at the time of the sale is admissible.10

§ 2626. Documentary evidence.-Where the contract is in writing, the written instrument is, of course, the best evidence of its contents, and the general rules, elsewhere fully treated, as to when and under what circumstances parol evidence is or is not admissible are applicable. Their application to bills of sale is shown in the sections referred to below.109 The competency or admissibility of shop and account book entries has also been fully treated.110 An invoice is not a bill of sale and cannot be used as evidence of a sale and proof of title when standing alone and unaccompanied with other details of the transaction.111 But it may, of course, be relevant and admissible in a proper case at least in connection with other evidence. So, a bill of

102 See Vol. I, § 582.

103 Pacific Guano Co. v. Mullen, 66 Ala. 582; Bischof v. Lucas, 6 Ind. 26; Wilch v. Phelps, 16 Neb. 20 N. W. 840.

515,

100 Vol. I, §§ 587, 611.

110 See, Vol. I, Ch. XXI, XXII; see also, Beebe v. Carter, 54 Kans. 261, 38 Pac. 278; Baird v. Hooker, 8 Ill. App. 306; Lyon v. Chamber

104 Wilch v. Phelps, 16 Neb. 515, lain, 41 Mich. 119, 1 N. W. 983;

Quinby v. Carhart, 133 N. Y. 579, 30 N. E. 972; Stubbings v. Dockery, 80 Wis. 618, 50 N. W. 775; Champion v. Doty, 31 Wis. 190.

111 Strum v. Baker, 150 U. S. 312, 14 Sup. Ct. 99; Dows v. National Exch. Bank, 91 U. S. 618; see also, Newcomb v. Boston &c. R. Co., 115 Mass. 230; Shepherd v. Harrison, L. R. 4 App. Cas. 116.

lading and live stock contract for poultry claimed to have been shipped by the plaintiff to the defendant have been held admissible where there was a controversy as to whether the plaintiff owned and shipped such poultry to the defendant.112 So, too, letters are admissible in a proper case to show the sale of personal property.113 Where the seller brings suit for the purchase price of chattels, a bill of lading is admissible which states that the property had been bought at a stipulated price, and so are letters between the buyer and seller which show a demand for payment or a request for more time.114 A receipted bill may also be admissible as evidence of a sale.115 So, in general, any written memorandum showing a sale and delivery of the goods and a promise upon the part of the buyer to pay may be received in a proper case to prove or as tending to prove the sale.116 The necessity for a writing in certain cases under the statute of frauds is considered in the first volume of this work in the chapter treating of that statute.

§ 2627. Parol evidence.-As between the parties, and except where the statute of frauds applies, a sale or contract of sale may be oral or by words, acts and conduct as well as in writing. So, while it is the rule here, as well as in other cases, that a complete written contract cannot, ordinarily at least, be contradicted or varied by parol evidence,11 yet, as is illustrated in several sections in this chapter, parol evidence may nearly always be admissible as to some matter involved or for some purpose. Thus, it is often admissible to identify the property or the parties, or to show the surrounding circumstances, or even some custom, and there are few cases in which what was done under the contract, such as the time and manner of delivery, payment, character, quality or value of the property, or the like, can be shown in any other way than by parol evidence, for the reason that there is no written evidence. So, in cases of fraud, and in other cases where intention is material and is shown by conduct and extrinsic circumstances, such evidence is usually competent.118 In some cases a bill of

112 Richmond

Iowa 255, 42 N. W. 184.

V. Sundberg, 77 McArthur v. Wilder, 3 Barb. (N. Y.) 66; see, Reherd's Adm. v. Clem, 86 Va. 374, 10 S. E. 504.

113 Stagg v. Compton, 81 Ind. 171; Fremont Cultivator Co. v. McCamy, 80 Ga. 343, 4 S. E. 849; Smith v. Colby, 136 Mass. 562.

114 Fremont Cultivator Co. v. McCamy, 80 Ga. 343, 4 S. E. 849; Wight v. Stiles, 16 Shep. (Me.) 164.

116 Cassidy v. Hyland, 120 Mass. 221; Smith v. Colby, 136 Mass. 562; Barr v. Chandler, 47 N. J. Eq. 532, 20 Atl. 733.

117 See, Vol. I, Ch. XXVI.

118 See, Armstrong v. Huffstutler,

115 Barker v. Bushnell, 75 Ill. 220; 19 Ala. 51; Loeb v. Flash, 65 Ala.

sale absolute on its face may be explained, and even in an action by the seller for possession of the property, oral evidence may be introduced to show that it was given for security."1 119 In some states statutes have been passed which declare that a bill of sale for certain chattels, absolute upon its face, but where the vendor retains possession, shall be interpreted as a chattel mortgage and shall be treated accordingly.120 Oral evidence may be introduced in a proper case to show that a transaction, evidenced by a bill of sale, was a mortgage or something different from what the bill of sale purports to be,121 but it generally requires clear and decisive evidence to show that a bill of sale absolute upon its face was intended for something else.122 Declarations of an alleged seller that he has sold certain articles, taken with evidence of a written agreement of sale and the fact that the buyer went into pos

526; Turner v. Huggins, 6 Eng. (Ark.) 337; Baldwin v. Marsh, 6 Ind. App. 533, 33 N. E. 973; Mann v. Taylor, 78 Iowa 355, 43 N. W. 220; Rees v. Jackson, 64 Pa. St. 486, 3 Am. R. 608; Hedges v. Payne, 63 Hun (N. Y.) 630, 17 N. Y. S. 809; Ross v. Miner, 64 Mich. 204, 31 N. W. 185; Silberman v. Munroe, 104 Mich. 352, 62 N. W. 555; Way v. Ryther, 165 Mass. 226, 42 N. E. 1128; Mayer v. Dean, 115 N. Y. 556, 22 N. E. 261, 5 L. R. A. 540; Gross v. Drager, 66 Wis. 150, 28 N. W. 141; Dowling v. Lawrence, 58 Wis. 282, 16 N. W. 552; Blake v. Blackley, 109 N. Car. 257, 13 S. E. 786; Stearn v. Clifford, 62 Vt. 92, 18 Atl. 1045; Miller v. White, 46 W. Va. 67, 33 S. E. 332, 76 Am. St. 791; see also, for other illustrations in cases of a different character, Ontario &c. Asso. v. Cutting &c. Co., 134 Cal. 21, 66 Pac. 28, 53 L. R. A. 681; Baird v. Hooker, 8 Ill. App. 306; Beebe v. Carter, 54 Kans. 261, 38 Pac. 278; Lyon v. Chamberlain, 41 Mich. 119, 1 N. W. 983; Montague v. Dougan, 68 Mich. 98, 35 N. W. 840; Deranleau v. Jandt, 37 Neb. 532, 56 N. W. 299; Foster v. Persch, 68 N. Y. 400; Amrhein v. Clausen,

155 Pa. 93, 25 Atl. 877; Howe v. Morehouse, 55 Hun (N. Y.) 606, 130 N. Y. 651, 7 N. Y. S. 938, 29 N. E. 1033; Pacific Cable Co. v. McNatt, 2 Wash. St. 216, 27 Pac. 869; Tidden v. Raab, 60 Hun (N. Y.) 579, 14 N. Y. S. 556; Quinby v. Carhart, 133 N. Y. 579, 30 N. E. 972.

119

Hayworth v. Worthington, 5 Blackf. (Ind.) 361, 35 Am. Dec. 126; McAnnulty v. Seick, 59 Iowa 586, 13 N. W. 743; Butts v. Privett, 36 Kans. 711, 14 Pac. 247; Pinch v. Willard, 108 Mich. 204, 66 N. W. 42; Morgan v. Shinn, 15 Wall. (U. S.) 105, 21 L. Ed. 87; Manufacturers' Bank of Milwaukee v. Rugee, 59 Wis. 221, 18 N. W. 251; see, however, Harper v. Ross, 10 Allen (Mass.) 332; Thomas v. Scutt, 127 N. Y. 133, 27 N. E. 961; Bend v. Susquehanna Co., 6 H. & J. (Md.) 128, 14 Am. Dec. 261.

120 Zumpfe v. Gentry, 153 Ind. 219, 54 N. E. 805; McKinney v. Miller, 19 Mich. 142.

121 George v. Norris, 23 Ark. 121; Nattin v. Riley, 54 Ark. 30, 14 S. W. 1100.

122 Trieber v. Andrews, 31 Ark. 163; Danforth v. Cleary, 41 Ill. App. 655.