43 So. 946 | Miss. | 1907
delivered the opinion of the court.
The wisdom of the statute of frauds is proved by more than two centuries of experience. It has been said that it “carried its influence through the whole body of our civil jurisprudence, and is in many respects the most comprehensive, salutary, and important legislative regulation on record, affecting the security of private rights.” 2 Kent, Com., 494, note “a.” No part of it is of more importance for protection in the daily concerns of life than the clause invalidating oral contracts of sale of personalty for above $50, unless there is receipt by the buyer of all or part of it, or actual payment of all or part of the purchase price.' In order to enforce such a contract it must be satisfactorily shown that there was an agreement of the minds of the parties selling and buying to the precise terms of the contract, and that something of earnest money was actually paid or secured on that contract, or that the property, or part of it, was actually delivered to and accepted as upon that contract by the buyer. If the delivery be of part for all, this constructive or symbolical delivery must plainly appear.
In the case before us it is difficult to repose quietly on the belief that there was an agreement of the two minds that the sale was concluded. No money was paid; no writing made; no clear and distinct understanding had as to the terms and times of payment. The whole reliance of the seller here is on a constructive delivery of three sheep for a flock in the range, whose number is not known, and the three were not of the flock in the range, but pets near the house. It seems very clear that there was nothing said at the barn to' take the agreement from under
We have examined the authorities cited by counsel on both sides, and now refer to the very elaborate notes to Shindler v. Houston, 49 Am. Dec., 325, et seq. We quote from page 329: “There must be, on the one hand, a delivery by the vendor with intent to vest the title and legal possession in the vendee, and, on the other hand, there must be, not only an actual receipt of the goods, or some part thereof, by the vendee, but also some act or conduct on his part clearly indicating an intent to accept them as owner in performance of the parol contract.” To this Mr. Freeman cites a -large number of cases. On page
Reversed and remanded.