Davis v. Eastman, 83 Mass. 422

Davis v. Eastman

83 Mass. 422 | Mass. | 1861

Merrick, J.

It is admitted that the contract declared on is in its terms within the statute of frauds. No note or memorandum in writing was made of it; nothing was given by the purchaser to bind the bargain, or in part payment for the property contracted to be sold. It had, therefore, no legal force or validity, unless some portion of the property was subsequently received by the purchaser on account of and in part performance of the contract. Rev. Sts. c. 74, § 4.

To establish this fact the burden of proof was upon the plain tiff. The only evidence produced by him for this purpose was his own testimony, in which he stated that “ in the latter part of October and early in November 1853, he received about eighteen *424cords of wood from the defendants In two car loads.” But he did not testify that he had received any other parcels or quantities of wood, or that these eighteen cords were delivered or received on account, or in part performance, of the contract declared on. And this is most material to be considered; because, from the record of the suit prosecuted by the defendants against the plaintiff, and which was produced in evidence upon the trial, it appears that all this wood was delivered, and the plaintiff became indebted for it, on another and different contract. The declaration in that suit was upon an account annexed to the writ, containing three ¿harges for wood delivered in October and November, amounting in the aggregate to twenty seven and five eighths cords at four dollars per cord. The defendants in that suit appeared by their counsel; and, after it had been pending for several terms, were defaulted, and judgment was rendered against them for the amount claimed. This is conclusive upon the parties. The statute provides that upon a default the charges in the declaration shall be taken to be true. Rev. Sts. c. 92, § 1. The question, therefore, whether the wood received by the plaintiff of the defendants in October and November was delivered or accepted on account of the contract set forth in the declaration of the present suit is conclusively answered in the negative by the judgment rendered in the former suit. In this state of proof, it is obvious that there was no evidence before the jury upon which a verdict could be rendered for the plaintiff. Even in his own testimony there is no affirmance of the essential fact that he had accepted some portion of the property contracted to be sold in part performance of the bargain, without which it is not pretended that this action can be maintained. It is therefore manifest that the ruling of the presiding judge, upon which a verdict was returned' for the defendants, was correct.

This conclusion is decisive of the whole case, and makes it unnecessary to consider the remaining questions presented in it; and judgment must accordingly be entered on the verdict.