Nichols v. Mitchell

30 Wis. 329 | Wis. | 1872

Lyon, J. —

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 increased market value thereof, when delivery was due by the terms of the contract, was held void for want of consideration. ¥e believe that the case was correctly decided, and we are unable to perceive any difference 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 all the special verdict means, which is to the effect that the defendant gave the plaintiffs an order to buy 25,000 bushels of wheat for him and on his account. If it means 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 the 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, for the purpose of fixing and determining the amount of the defendant’s supposed 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 an actual purchase of the agreed quantity of wheat in the market. There the losing party gave his promissory note for the agreed sum, while here we have 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 consideration, 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 the 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 differences when ascertained, these acts would have been an execution, or at least a part execution, o± the contract, but nothing less 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 probably 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, cannot properly be held to operate as an execution of the .original void contract. We find nothing in the case which vitalizes that contract, or gives to it any validity or effect whatever, Such being the case, it is idle to invoke, in support of the judgment herein, -the rules of law concerning the obligation of a person to reimburse another for moneys paid by him to the use of the former. While that remains a void contract, the plaintiffs have not paid for the use óf the defendant the difference between the contract price 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 recover the amount thereof of thé defendant.

It follows from these views that the learned county judge erred 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.