8 Iowa 459 | Iowa | 1859
The statute provides that no evidence of any contract in relation to the sale of personal property, is competent, unless in writing, where no part of the property is delivered, and no part of the price is paid ; but that this rule does not apply, where the article of personal, property sold, is not, at the time of the contract, owned by the
For the plaintiffs, reliance is placed upon the fact, that they were doing business in the city of New York, and that the contract was, that the goods were to be shipped by them immediately, to the defendant at Keokuk, Iowa, by express; and it is argued, that as the goods were not ready for delivery, but were to be shipped from New York, that money and labor must necessarily be expended in procuring them, and the case was consequently taken out of the statute, and parol evidence of the contract should have been received.
We have not been able to arrive at this conclusion. In referring to the decisions under the seventeeth section of the English statute of frauds, (29 Charles II., ch. 3), it will be seen that where the thing contracted for, did not exist at the time of the contract, but ivas to be so constituted by the application of subsequent labor, and was consequently incapable of delivery, or acceptance, at the time of agreement, the contract was held not to be within this section of the statute, although the materials to be employed, did exist at the time of the contract. Thus, a contract for a chariot to be made; or for the purchase of a quantity of oak pins, to be cut out of slabs and delivered to the buyer; or for a quantity of corn, to be threshed out, was not within the statute. Towers v. Osborne, Str., 506; Groves v. Buck, 3 M. & S., 178; Clapton v. Andrews, 4 Burr., 2101; 2 Starkie on Evidence, 353 ; 4 Wheaton, 89, note. The statute has been held to extend, however, to the sale of things which exist in solido, at the time of the sale, although the contract were but executory, and although the goods were to be delivered subsequently, at the same, or a different, place. Cooper v. Elston, 7 Term Rep., 14; Newman v. Morris, 4 Har. & McHenry, 421.
If it had appeared that the goods ordered by defendant, were not owned by the plaintiffs, and not ready for delivery, because labor, skill or money must necessarily be expended, in producing or procuring them, the case would have
' The remaining question is, as to the right of the plaintiffs to suffer a non-suit. "Where no set-off is pleaded, it is allowed to the plaintiffs to submit to a non-suit, at any time before the jury return with their verdict. Where the trial is by the court, and not by a jury, the plaintiff may suffer a non-suit at any time before the court is ready to make its decision on the question of fact, but not afterwards! Code, sections 1803, 1804.
There was no question of fact tried by the court, in this instance. The plaintiff offered his evidence, which was received without objection, and they rested their case. The defendant offered no evidence, but moved the court to exclude all the evidence offered by the plaintiffs. This motion was sustained by the court, and the evidence excluded; whereupon the court stated that it must find for the defendant. At this stage of the proceedings, the plaintiffs asked leave of the court to take a non-suit. This leave was refused, and judgment rendered for the defendant. We think the permission should have been granted, and the non-suit entered. By the decision of the court, the plaintiff was .left without any testimony after he had rested his case, upon the testimony admitted without objection. When this testimony was excluded, on defendant’s motion, there was nothing for the court to try, and a non-suit should have been directed. Where a cause is submitted upon evidence on both sides, and the court is prepared to give a decision upon the facts given in evidence, there,.is reason in the rule of law, that a party should not be allowed, at this stage of pro
Judgment reversed.
