22 Mo. 354 | Mo. | 1856
delivered the opinion of the court.
The only question in this case is, whether the contract between the parties is within the statute of frauds and perjuries or not.
The facts of the case are as follows : The plaintiff was buying cattle for California, and being at defendant’s house, he went with the defendant to look at some cattle in the defendant’s pasture. They were unable to agree as to the price of the lot, but traded for four yoke of oxen, at the price of forty dollars per yoke. Plaintiff told defendant that he had not the money with him ; but if the defendant would go home with him, or would go back to town with him, he would pay him. Defendant replied that it did not matter about the money : he could pay it when he came for the cattle, which would suit as well. Plaintiff then told defendant that he was not prepared to drive the cattle away, and requested defendant to keep them for him until he sent for them, and to feed them, as he wished
The suit is to recover the forty dollars, the difference in the priee. It was originally brought before a justice of the peace, in whose court the plaintiff obtained judgment. The defendant appealed to the Circuit Court, where," on trial, the defendant had judgment; that court holding, that the contract was within the statute of frauds, and that the plaintiff was not entitled to recover.
The plaintiff brings the case here by writ of error, and contends that the contract was not within the statute of frauds, as the facts show there was a sufficient delivery to take it out of the statute, and he relies upon the cases of Elmore v. Stone, 1 Taunt. Rep. 457 ; Chaplin v. Rogers, 1 East. 192, and Vincent v. Germonds, 11 Johns. Rep. 284.
The defendant in error, on the other hand, contends that the facts show the' contract to be clearly within the statute of frauds; that delivery and acceptance must be evidenced by some act of the parties, and that no mere words, however significant, are sufficient; and he relies upon the case of Shindler v. Houston, (1 Comst. Rep. 261.)
Our statute of frauds and perjuries, § 6, declares that “ no contract for the sale of goods, wares and merchandise, for the price of thirty dollars or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or unless some note or memorandum in writing be made of the bargain, and signed by the parties to be charged with such contract, or their agents lawfully authorized.” This is, substantially, the 17th section
It may not be amiss to examine some of the eases on the subject, as decided by the English, and also by the American courts. 1
In Baldry and others v. Parker, 2 Barn. & Cres. 37, (9 Eng. C. L. R. 16,) Abbott, chief justice, said: “We have have given our opinion upon more than one occasion, that the 29 Car. II, c. 3, is a highly beneficial and remedial statute. We are, therefore, bound so to construe it as to further the object and intention of the legislature, which was the prevention of fraud.” It appeared from the facts in this case, that the defendant went into the plaintiff’s shop and bargained for various articles. Some were severed from a larger bulk, and some he marked in order to satisfy himself that the same were after-
In the case of Shindler v. Houston, (1 Comst. Rep. 261,) many of the cases on this subject, both English and American, were examined and reviewed by the court of appeals of New York; and it was held that,, to constitute a delivery and acceptance of goods, such as the statute requires, something more than mere words are necessary. Superadded to .the language
In the case now before us, it can not be pretended that Johnson had parted with his lien upon the cattle for the purchase money. There was no act done after the sale, amounting to a delivery of the oxen by Jphnson to Kirby, and an acceptance by Kirby of the oxen from Johnson; that is, there was no delivery by the vendor, .with an intention of vesting the right of possession in the vendee; and there was no actual acceptance by the vendee, with the intent of taking possession as owner. If the courts of the country should decide that such facts as appear in evidence in this case are sufficient to take it out of the statute of frauds, then it is difficult to find what will come within that statute. Nay, we had better blot the statute from our books at once, and not fritter away its vitality by constructive deliveries and acceptances.
the judgment below is affirmed.