13 Vt. 578 | Vt. | 1841
The opinion of the court was delivered by
This is a writ of error brought to reverse a judgment rendered by the county court in favor of Dole against Carpenter on the report of an auditor in an action of book account. The question is whether Carpenter actually received a quantity of potatoes, amounting to 465 bushels, which were left in the field, as stated in the report. It is admitted by the counsel for the defendant in error, that there must have been a delivery of these potatoes by Dole to Carpenter, or that a recovery therefor could not be had, and this admission obviates the necessity of our adverting to the questions of law, which have been argued, and, indeed, there is no doubt in regard to the law. Unless this was an executed and perfected contract and sale, and nothing more was required, on the part of Dole, to vest the property in Carpenter, the action on book could not have been supported. The contract, made in the spring of 1838, for the sale of the potatoes, could not have been enforced while it remained executory, both for want of mutuality, andas coming within the prohibition in the statute of frauds.
The auditor finds that Carpenter is indebted for 465 bushels of potatoes which were left in the field, and charges him for that quantity. This implies that he found a sale and delivery of that quantity. If the facts found by him are not inconsistent with the fact that there was a sale, delivery and measurement of the potatoes charged, the judgment cannot be reversed.
It appears, that the contract was made in the spring of 1838, by which Carpenter agreed to purchase of Dole all the potatoes Dole should raise that season, except what he
The judgment of the county court is therefore affirmed.