3 Ind. 289 | Ind. | 1852
This was an action of assumpsit, brought by Sutton against Jarvis for goods sold and delivered. Plea, the general issue, with an agreement that all matters of defense which might be specially pleaded, might be given in evidence under this plea. Verdict and judgment for the plaintiff for 79 dollars and 15 cents, a motion for a new trial having been overruled.
The error assigned is that the judgment is not warranted by the evidence.
The plaintiff proved that, in the fall of 1849, he put two fields on his farm in wheat; one of which fields contained about eight, and the other about twelve acres; that the wheat upon the eight acre field was worth about the sum for which the judgment was rendered; and that
The defendant then introduced witnesses who testified that, in the month of February, before the wheat was harvested, the plaintiff and defendant made a verbal contract to the following effect: The plaintiff conditionally sold his farm, comprising 240 acres, to the defendant for 14 dollars per acre. Sutton was to go to Iowa in May following to look at the country. The defendant was to furnish the plaintiff with five land-warrants, and seven if he wished them, when he was ready to start to Iowa. The plaintiff was to put the defendant in possession of certain fields, containing about 54 acres, forthwith, which the latter designed to plant with corn, and was to allow him to stable his horses in the barn while he was cultivating the corn. If the plaintiff liked Iowa, when he went there, the defendant was to keep the farm at the price agreed upon, and, in that event, he was to pay the plaintiff 2 dollars per acre for all the wheat, including both the fields before mentioned. But if the plaintiff did not like Iowa, there was to be no sale of the farm, and the defendant was to pay him rent for the corn-ground at the rate of 2 dollars per acre.
The defendant also proved that, in pursuance of this agreement, the plaintiff gave him possession of the fields to put in corn, which he plowed and planted, stabling his horses in the barn while doing so.
He then introduced witnesses who stated that, in the month of April, Martin and Silas Dooly, being desirous of purchasing a farm for their nephew, went to look at the farm of the plaintiff, being the same farm before referred to. They first saw the defendant who explained to them his contract with the plaintiff. They then went to see the plaintiff and informed him that they desired to purchase the place. The plaintiff told them he had sold it to the defendant and Gould not sell it to them, but if they would wait until his return from Iowa, if he should not like that countiy, he would have the right to sell, and intimated that it would be easy for him to be dissatisfied,
After this last agreement the Doolys bought the farm from the plaintiff, giving him a higher price for it than the defendant had agreed to give. About the time the wheat was cut, a dispute arose between the plaintiff and the defendant, each threatening to sue the other if he should take the wheat, and finally the defendant took the wheat away at a time when the plaintiff was absent from home.
All this evidence relative to the verbal contract for a conditional sale of the farm, and to the rescission of that contract, was objected to by the plaintiff and excluded by the Court.
We are of opinion that the judgment is right, and that if all this evidence had been admitted it could not have varied the result. The contract verbally made between the plaintiff and defendant amounted merely to a lease of the 54 acres of corn-ground. There was no contract for the sale of the farm which Jarvis could have enforced. There was, therefore, no contract of sale to rescind, and
The circumstances do not authorize the conclusion that the eight acres of wheat was a gift to the defendant, because there was no actual delivery. The mere pointing out of an article does not constitute a delivery. If I point to a horse running in my field and tell another person he may have him, this would not preclude me from preventing such person from taking actual possession.
Neither does this evidence show that there was any compromise which would be a sufficient consideration. It is true a compromise of doubtful claims may be sufficient to found a consideration upon, but in such cases there must be a surrender of some legal benefit which the other party might have retained. In other words, there must be some consideration for a compromise, as well as for any other contract, if it is unexecuted and remains to be enforced. A promise to give something for the compromise of a claim, about which there is merely a dispute and controversy, and for which there is no legal foundation whatever, is not sufficient to sustain a suit at law. See Wade v. Simeon, 2 Mann. Gr. and Scott, 548.— Edwards v. Baugh, 11 M. and W. 641.
The judgment is affirmed, with 2 per cent, damages and costs.