Putnam's Handy Law Book for the Layman

by Albert Sidney Bolles

Another section relates to the sale of goods, wares and merchandise. This has not been enacted in every state. If the amount is above that mentioned in the statute, thirty to one hundred dollars, there must be a written contract or delivery and acceptance of the goods to constitute a contract. If A sells a bill of goods to B, who declines to receive them, and the contract is wholly verbal, he can shield himself behind this statute wherever it prevails. Many questions therefore arise, what is a delivery and acceptance? A delivery of a key of a building containing the property is sufficient. The delivery of a bill of lading of goods properly indorsed, making entries of the goods sold, pointing them out or identifying them is enough to comply with the statute. Whenever there has been a transfer of possession and control by the seller to the purchaser to which the latter has assented there has been a sale. Or, more broadly, whenever there has been such action as to show clearly an intention to sell and accept the property the sale is complete. Part payment of the purchase money for personal property is generally regarded as showing such intention.

To a contract for the manufacture of a thing the statute does not apply. Simple as this answer may be, the law soon gets into difficulties in deciding whether a contract is for the making of a thing, or for the thing itself; whether the important element is the skill or labor that is to be expended, or the thing without regard to the process of making. Thus, if a contract is with one to paint a portrait, the statute would not apply, for the skill of the artist is the important thing purchased, and not the canvas, paint, etc., he must use. To a contract for a locomotive the statute would apply. "If the contract states or implies that the thing is to be made by the seller, and also blends together the price of the thing and compensation for work, labor, skill and material, so that they cannot be discriminated, it is not a contract of purchase and sale, but a contract of hiring and service, or a bargain by which one party undertakes to labor in a certain way for the other party," and the statute does not apply to it.

Statutes of Limitation.—In all the states statutes have been enacted which provide that if the rights of parties to legal redress are not enforced within a specified period, the courts are closed to them. Thus, in most states a statute provides that a holder or owner of a promissory note who neglects to sue the debtor within six years from its maturity cannot do so afterwards. The note is not absolutely void, though the law presumes it has been paid. As the note is not void, payment may be effected as we shall soon learn.

Suppose one is indebted to a merchant, if the debt is not paid within six years in most states and nothing has happened, the debt in popular language is outlawed, in other words cannot be collected by resort to law. The time begins to run as soon as the debt has accrued; if it be a debt to a merchant, as soon as one has stopped trading with him. To the operation of this rule are some important exceptions. It does not run in favor of a minor, married woman or insane or imprisoned person; or not whenever or wherever they are not capable of contracting. But a disability arising after the statute has begun to run in his favor will not prevent it from running.

The Statute of Limitations generally bars the remedy or right to pursue the debtor in a court of law, it does not extinguish the right or debt, and therefore the right to pursue a debtor may be revived by a new promise to pay. One may ask, is not a debtor a foolish man to acknowledge that he is a debtor after the law has released him from his debt? Yes, from a purely selfish point of view. Nevertheless, the moral obligation remains, and happily all morality has not yet fled from the world. One may ask, is not such a promise void because there is no consideration received for it? No, for the reason that there was a consideration for the original obligation, and this is sufficient to sustain the renewed promise to pay it. In some states the statutes provide that such an acknowledgment to pay a debt after the statute has barred it, must be in writing, and signed by the debtor or his agent. The most general rule is, to remove the bar of the statute, there must be either an express promise to pay, or an acknowledgment of the debt accompanied by an expression of willingness to pay it. To simply acknowledge the existence of a debt is not enough, there must be indicated or expressed a willingness to pay.

A debt may also be revived by part payment. Payment on account of the principal, or payment of interest on the debt will prevent the statute from running against it. Payment to have that effect must be made with reference to the original debt and in such a way as to effect an acknowledgment of it.

While a debtor may always apply a payment to any one or more of different debts he owes his creditor, if he fails to do so the creditor can make the application even to a debt which is already barred by the statute, but his application will not remove the bar to the remainder of the debt. To have that effect the appropriation must be made by the debtor himself.

Statutes of limitation apply to many obligations, and the times or dates at which they become outlawed or outside the scope of legal redress, vary in the different states. In many of them an ordinary book account or negotiable note is outlawed after six years, and cannot be enforced after that time unless the debtor has revived it by a new promise or part payment. A judgment against one usually runs twenty years.

Telegraph and Telephone.—Though the business of a telegraph company is public in its nature, it is not a common carrier, and it may therefore set up reasonable regulations for the reception, transmission and delivery of messages. As it is a quasi public corporation, it must extend its services to all that apply therefor and offer to pay the charges. And if refusing it may be compelled to do these things. The company may charge more to one person than to another when the service is unlike, though not enough to amount to an unjust discrimination. The difference in charges must bear some relation to the different services rendered.

A telephone company cannot legally discriminate between two competing telegraph companies by giving one the telephone call word "Telegram" and thereby depriving the other telegraph company of business. Nor can a telephone company legally charge a higher rental for a telephone to a telegraph company than to any other patron. Nor can a telegraph company discriminate against another in refusing credit which is given to other responsible parties.