86 Iowa 480 | Iowa | 1892
The plaintiff claims that on July 20, 1890, he orally contracted with the defendant to deliver to him (the plaintiff), at his elevator in Lake City, Iowa, one thousand, five hundred bushels of oats, of the crop of 1890, then raised and unthreshed, at the agreed price of eighteen cents per bushel; that the defendant has refused to perform his contract; that he has sustained damages in the sum of three hundred and fifty dollars. To this petition a demurrer was sustained, on the ground that the alleged contract was within the statute of frauds. Afterwards the petition was amended by alleging that the grain thus contracted to be sold in 1890 was raised that year by the defendant, and was on July 20, 1890, unthreshed; that said oats were to be delivered in a merchantable condition;
The defendant, in substance, denies the allegations in the first count of the plaintiff’s petition, and as to the second count he says the pretended contract is within the statute of frauds, because the contract was not in writing, no part of the purchase price paid, and no part of the grain delivered. That said grain was owned and possessed by the defendant at the time of the pretended contract. The case was tried to a jury, who returned a verdict for the plaintiff foT one hundred and ninety-five dollars, on which judgment was entered.
Clearly, it seems to us, it cannot be said, within the scope of these definitions and the meaning-of the words as used in the statute, that the defendant, by harvesting, threshing, and hauling to market his oats, is bestowing labor, skill and money in either “producing or procuring” the oats. He expended no labor, skill or money by virtue of the contract that he- would not have done if the contract had never existed. The
The acts relied upon to take this case out from-under the provision of the statute, and bring it within the exception heretofore quoted, are acts only which naturally and necessarily were a part of the plaintiff’s business and avocation. His care of these oats was. not in any way affected by the contract of sale. His situation in that respect may be likened to a manufacturer who contracts to sell to one certain goods, being of the kind and character he manufactures for his trade generally. In such a case, as the manufacturer produces the goods in the usual course of his business, the contract would be one of sale, not for the bestowal, of work and labor. Pratt v. Miller, 18 S. W. Rep. (Mo.) 965; Goddard v. Binney, 115 Mass. 450. A material inquiry in the case at bar is, as we have indicated, as to whether the defendant, in order to comply with his contract, would be compelled to change his condition, business or manner of doing his regular business. The necessity for harvesting, threshing and hauling his grain existed regardless of the alleged contract. O’Neil v. Mining Co., 3 Nev. 141; Lumber Co., v. Guttshall, 3 Colo. 14.
Another proposition may be stated here, that, in order to take a contract for the sale of personal property out of the statute on the ground that labor, skill and money are necessary to be expended in producing or
In cases like this, we think the true rule is, if the grain is sold and no part of it delivered, and no p'art of the price is paid, and the contract is not in writing, and the labor, skill and money which is necessary to be expended upon it, to fit it for market, is such only as, in the ordinary course of the defendant’s business, he would be compelled to expend upon it, or devote to it, in order to preserve and care for it as a good husbandman, the case is purely a sale, and comes within the statute. It may be if the defendant had contracted to plant or raise a crop of such a character or kind as required special skill, labor or work, other than that required in the ordinary performance of his labors incident to raising and harvesting his crops, and such special skill and labor was contemplated at the time the contract was made, and was to be bestowed at the instance of and for the benefit of the plaintiff, that the case would be within the exception provided in our our statute.
A brief review of a few cases which support the rule above laid down may better illustrate its application. Baker on Sales, section 54. Chief Justice Shaw held that when a contract is for an article then existing, or such an article as the vendor “usually has for sale in the course of his business, the statute applied.” Mixer v. Howarth, 21 Pick. 205. In the same case, Harris, J., expressed the opinion that, if the work and labor required to be done, in order to fit the subject-matter of the contract for delivery, was to be done for the vendor, the case would be within the statute. Story, J., said “that where the subject-matter of the contract was not to be created by manufacture, but, being already in existence, was merely to
The rule is thus stated in a late Massachusetts case: ‘A contract for the sale of articles then existing, or such as the vendor, in the ordinary course of business, manufactures or procures for the general market, whether on hand' or not, is a contract for the sale of goods, to which the statute .applies. But, on the other hand, if the goods are to be manufactured especially for the .purchaser, and upon his special order, and not for the general market, the case is not within the statute.” Goddard v. Binney, 115 Mass. 450. In O’Neil v. Mining Co., 3 Nev. 141, the court, virtually following the rule laid down in Massachusetts, held that, to make the case one for work and labor, the contract should contemplate or require some change in the condition, business, or circumstances of the vendor. In Downs v. Ross, 23 Wend. 270, the contract was for the purchase of wheat, only a part of which was threshed, and that which had been threshed was to be further cleaned. It was held that the case was one of sale, not for work and labor. The court said: “If the thing sold-exist at the time in solido, the mere fact that the seller is to do something to put it in a marketable condition did not take the contract out of the operation of the statute of frauds.” Cooke v. Millard, 5 Lans. 246; Baker on Sales, sections 30, 43. In Gilman v. Hill, 36 N. H. 311, it was held that a contract for sheep pelts, to be taken from sheep, was a contract of sale. So a contract for the purchase of all the flax straw to be raised from forty-five bushels of
The evidence in this case shows without conflict-that the defendant expended no work, labor, skill, or money on the oats, other than he would have done if there had been no contract of sale. The case, then, is one clearly within our statute. The contract not being in writing, no part of the price having been paid, none of the oats having been delivered, no evidence of the contract was properly receivable. For a review of the cases in England and in this country, reference is had to Benjamin on Sales [Bennett’s Ed. 1892], sections 90-110, and American note following.
Several other errors are assigned. They need not. be considered, inasmuch as in no event can the plaintiff recover under the contract pleaded. The motion to dismiss appeal and affirm the judgment below, is overruled. For the reasons given, the cause isBEVEBSED.