34 Wis. 83 | Wis. | 1874
Conceding, for the purposes of this appeal, that the plaintiffs paid the money to Smith in pursuance of their contract with the defendant and in part execution thereof, it is indisputable that such payment was not made at the time the contract was entered into, but afterwards. It is also indisputable that the alleged contract is within the statute of frauds, and therefore void, unless it is saved by such payment to, Smith. R. S.,ch. 107, sec. 3; Tay. Stats., 1256, § 3. Hence the single question to be determined is, Did such payment take the contract out of the operation of the statute of frauds, and render it valid and binding upon the defendant?
The decision of this court in Bates v. Chesebro, 32 Wis., 594, answers this question in the negative. It was there held that a verbal executory contract for the sale of goods for the price of fifty dollars or more, is void by the statute unless some part of the purchase money be paid at the time the contract is made; and that payment at a subsequent time will not render the contract valid. The subject is quite fully discussed in the opinion in that case, by Justice Cole, and requires no further discussion here. I did not participate in that decision, but I fully concur therein, believing that no other rational construction can be given to the statute.
In this case there is no pretense that the money was paid by the plaintiff to Smith at the time the alleged contract was made. It follows that the motion for a nonsuit should have been granted.
