Nichols v. MitchellNichols v. Mitchell
- Reporters:
- Before:
- Lyon
The original contract for the sale and delivery of the wheat by the defendant to the plaintiffs, is precisely like the original contract in Hooker v. Knab, 26 Wis., 511, and is void by the statute of frauds. In that case, a promissory note given by the vendor for the difference between the contract price of the wheat and the increаsed market value thereof, when delivery was due by the terms of the contraсt, was held void for want of consideration. ¥e believe that the case was correctly decided, and we are unable to perceive any diffеrence in principle in the two cases. In this case, the defendant requested the plaintiffs to buy in the wheat due them on the void contract, and they did so. This is аll the special verdict means, which is to the effect that the defendant gаve the plaintiffs an order to buy 25,000 bushels of wheat for him and on his account. If it meаns anything else, there is not the slightest evidence to support it. There is no testimony which tends to show, or from which it can be inferred, that the parties intended that thе title to the wheat so bought in, should vest in the defendant, and in no correct sense can it be said that the plaintiffs bought the wheat as the agents of the defendant. They purchased it for themselves, although at the request of the defendant, fоr the purpose of fixing and determining the amount of the defendant’s supposеd liability on the original void contract.
In Hooker v. Knab, the extent of such supposed liability was ascertained directly by the parties. In this case it was ascertained by аn actual purchase of the agreed quantity of wheat *332in the market. There the losing party gave his promissory note for the agreed sum, while here we hаve nothing but the implied promise of the defendant to pay the differences against him. If the express prbmise contained in such note was void for want of сonsideration, surely the implied promise in this case must be void for the same reason. In that case, counsel ingeniously argued that the original void contract bad been executed by the adjustment of the differences and the giving of the note, but ’the court‘held otherwise. It is argued in this éase, “with equal ‘plausibility, that the giving of thе order and the purchase of the wheat, was, in like manner an execution of ‘the original void contract between these parties. But the position is equally untenable. Had the defendant delivered the wheat, or perhaps some portion of it, pursuant to the contract, or bad be paid the diffеrences when ascertained, these acts would have been an execution, or at least a part execution, o± the contract, but nothing lеss than this would so operate. Certainly, a mere request made by the defendant to the plaintiffs to do an act, which the evidence tends to show, and prоbably shows, that they bad, by virtue of the custom of merchants where these transactions ’took place, a perfect right to do, with precisely the same results, bad no such request been made, and a compliance therewith, сannot properly be held to operate as an execution оf the .original void contract. We find nothing in the case which vitalizes that contrаct, or gives to it any validity or effect whatever, Such being the case, it is idle tо invoke, in support of the judgment herein, -the rules of law concerning the obligаtion of a person to reimburse another for moneys paid by him to the use оf the former. While that remains a void contract, the plaintiffs have not paid for the use óf the defendant the difference between the contract рrice óf the wheat and the price for which they purchased in the same, but they have paid such difference for their own use, and -cannot lawfully recоver the amount thereof of thé defendant.
It follows from these views that the learned county judge *333erred in giving the instructions mentioned in the foregoing statement of the case.
The judgment of the county court must be reversed and a venire de novó awarded.
By the Court.— So ordered.