38 Neb. 339 | Neb. | 1893
This was an action commenced by Charles L. Lamb to recover of plaintiff in error $1,849.15 and interest thereon, as a balance due for a quantity of corn alleged to have been sold and delivered by plaintiff to defendant. The amended petition upon which the case was tried alleges :
“1. That said defendant is a corporation duly organized*342 and existing under the general laws of the state of Colorado, and doing business in Stanton county, Nebraska.
“2. That some time in the month of October, 1886, the precise date whereof the plaintiff is unable to more specifically state, the plaintiff and defendant entered into a verbal contract, by the terms of which the plaintiff sold to said defendant above named all the corn that he then had on hand, including the crop of corn then standing in the fields of the plaintiff; and in consideration of the sale and delivery of said corn to the defendant, the said defendant agreed to pay the plaintiff the market price per bushel paid for corn in the said county of Stanton, in the state of Nebraska, on any day, to be selected by the plaintiff, between the time of delivery of said corn and the month of May, 1888, and on the day so selected by the plaintiff the amount then due the plaintiff should at once become due and payable.
“ 3. That in pursuance of said contract the plaintiff delivered to the defendant in the month of November, 1886, 143 bushels and 35 pounds of ear corn; and from the 21st day of December, 1886, to the 5th day of April, 1887, 782 bushels and 30 pounds of ear corn; and on the 30th day of December, 1886, 1,259 bushels of shelled corn; and in the month of January, 1887, 5,090 bushels of shelled corn and 25 pounds; and that the total number of bushels sold and delivered amounted in the aggregate to 7,275 bushels; and the plaintiff states that he is unable to more fully state the time and the amount of the delivery of said corn than in this paragraph stated.
“4. On the 1st day of February, 1888, the plaintiff, in oi’der to fix and establish the price to be paid by the defendant for the corn delivered as aforesaid, served notice on the defendant that he had selected the max’ket price per bushel paid for corn in Stanton county, Nebraska, on that date, to-wit, the 1st day of February, 1888.
“ 5. That the market price paid for corn on the said 1st*343 day of February, 1888, in Stanton county, Nebraska, was thirty-five cents per bushel.
“6. That on the 4th day of January, 1887, the defendant advanced to the plaintiff on said corn, the sum of two hundred (200) dollars, and on the 12th day of January, 1887, the further sum of four hundred and fifty (450) dollars, for which money so advanced the plaintiff afterwards agreed to pay the defendant interest thereon until the date of the selection of the market price per bushel to be paid for said corn.
“ 7. That there is due from the defendant to the plaintiff for the said corn, so delivered under the terms of said contract, the sum of two thousand five hundred and forty-six and twenty-five one-hundredths (2,546.25) dollars, no part of which has been paid, except the said sum of $650, which with the interest thereon, as agreed between plaintiff and defendant, amounts to the sum of $697.10.
“8. That after allowing to the defendant all just credits, there is still due and unpaid from the defendant to the plaintiff the sum of one thousand and eight hundred forty-nine and fifteen one-hundredths (1,849.15) dollars, together with the interest thereon, at the rate of seven per cent from the said 1st day of February, 1888."
The defendant interposed a general demurrer to the amended petition, which was overruled by the court, and an exception was taken to the decision. The defendant then filed an answer alleging:
“ 1. That on or about the 24th day of December, 1886, L. R. Crosby, as the general manager of the feeding department of said defendant, made an oral agreement with said plaintiff, whereby the said plaintiff was to sell and deliver at the ranch of defendant in Stanton county, Nebraska, all the corn and oats that he then owned near Pilger, and two car loads of corn to be shipped from Stanton, and said defendant agreed to pay said plaintiff for said corn and oats the average market price between the Stanton and*344 Pilger market on the day that said plaintiff selected and called for his 'money, between about the 24th day of December, 1886, and the 1st day of May, 1887, and that said plaintiff was to reduce said contract to writing in duplicate and sign them, and forward them to said D. R. Crosby for the same to be signed by said defendant, and one to be returned to said plaintiff.
“ 2. That said plaintiff failed and neglected to reduce said contract to writing, as agreed, and there is no note or memorandum of said agreement as required by law.
“ 3. That in accordance with said oral agreement made on or about the 24th day of December, 1886, with saidL. R. Crosby for said defendant, the said plaintiff delivered at the ranch of said defendant, in Stanton county, Nebraska, at various dates, a total of ninehundred and twenty-five (925) bushels and sixty-five (65) pounds of ear corn; and six thousand three hundred and forty-nine (6,3-19) bushels and thirty-five (35) pounds of shelled corn; and nineteen hundred and ninety-four (1994) bushels and twenty-seven (27) pounds of oats.
“4. That on the 25th day of April, 1887, in accordance with the contract made on or about the 24th day of December, 1886, the said plaintiff had a settlement with said defendant as to the oats, and on said date defendant paid said plaintiff for said oats the sum of $359.10.
“5. That on the 4th day of January, 1887, the said defendant loaned to said plaintiff the sum of $200, and on the 12th day of January, 1887, said defendant loaned said plaintiff the further sum of $450; and said plaintiff agreed to pay said defendant interest on said money, and that the same was to be settled and adjusted and deducted from amount that defendant might owe the plaintiff.
“6. The defendant, in further answer to the petition of the plaintiff, admits the allegation contained in paragraph 1 of said petition; but as to all other paragraphs in said petition it denies each and every allegation therein contained.”
The action was tried in the court below to a jury, who returned a verdict in favor of the plaintiff for $2,142.38. The plaintiff filed a remittitur of $1.25, and the court overruled the defendant’s motion for a new trial, and entered judgment in favor of plaintiff upon the verdict of the jury. The defendant brought the case to this court for review by proceeding in error.
The defendant objected in the district court to the introduction of iny evidence in the case, for the reason that the contract stated in the petition is within the statute of frauds, and is therefore void, which objection was overruled by the court. The plaintiff thereupon introduced evidence tending to prove every allegation of the petition, and rested. The testimony on behalf of the defendant tended to establish that the contract entered into between the parties relating to the sale and purchase of the corn, is the one pleaded in the answer; that the corn was delivered by the plaintiff to the defendant under said agreement, and that corn at the time the same was delivered, as well as in May, 1887, was worth on the market in Stanton county twenty cents per bushel. The court, at the request of the defendant, submitted to the jury special findings, which were answered by them and returned with their general verdict. By the third finding they found that the contract between the parties was as claimed by the plaintiff, and that the corn was delivered thereunder.
The most important question presented for our consideration is whether or'not the contract set out in the petition is within the statute of frauds.
The contention of the plaintiff in error is that the contract declared on is void under fine first subdivision of the section above quoted, and that the same is not actionable or enforceable in the courts, for the reason thb agreement rested solely in parol, and was not to be performed by either party within the period of one year from the date of the making of the same.
The defendant in error in his argument insists that the agreement in question does not fall within the clause of the section already mentioned j that the statute only applies to executory contracts, and not one which has been fully performed on one side. The authorities upon the question are divided. Some of the courts of the country hold that an action cannot be maintained upon a parol agreement, which by its terms is not to be performed within a year, even though made upon a valuable consideration fully executed, while other courts of equal standing and ability lay down the doctrine that full performance on one side takes the contract out of the statute, and that it is enforceable. We are not now called upon to examine the conflicting decisions, or to determine which is the true doctrine, as the question does not necessarily arise in this case. If we are able to comprehend the force and effect of the agreement in question, it is not within the scope of the statutory
Let us examine and see whether the agreement alleged and proved was capable of performance within a year from the time the same was entered into. The plaintiff below sold to the defendant all of his corn, including the crop then in the field. The contract contained no stipulation as to the time when the corn should be delivered to the defendant. True, by the terms of the agreement, plaintiff was to receive for the corn the market price paid for such grain in Stanton county on any day that should be thereafter designated by him between the time of delivery and May, 1888, but this provision did not bring the contract within the statute. Although the agreement was not performed within a year from its making, as regards the selection of the date upon which to fix the price the seller should receive for the corn, yet there was nothing in the terms thereof which prevented it from being performed within the year. Under the terms of the agreement, plaintiff had a perfect right, had he so desired, to have selected such date at once, and without delay, even on the next day after the corn was delivered. It was entirely optional with him to
The next contention of plaintiff in error is that the contract is void under section 9 of said chapter 32, which is . in the following language:
“Sec. 9. Every contract for the sale of any goods, chattels, or things in action, for the price of fifty dollars or more, shall be void unless : First — A note or memorandum of such contract be made in writing, and be subscribed by the party to be charged thereby; or, Second — Unless the buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action; or, Third — Unless the buyer shall, at the time, pay some part of the purchase money.'’'’
The contract declared upon in the amended petition is a verbal one for the sale of a quantity of corn exceeding in value the sum,of $50. No part of the purchase money was paid at the time the contract was entered into. This is conceded; but the plaintiff below insists that the stipulations in the contract have been fully performed on his part;
The doctrine of the text is amply sustained by numerous judicial decisions*. Seethe following authorities: Ex parte Parker, 11 Neb., 309; Caulkins v. Hellman, 47 N. Y., 449; Smith v. Brennan, 62 Mich., 349, 28 N. W. Rep., 892; Hansen v. Roter, 25 N. W. Rep.[Wis.], 530; Jamison v. Simon, 8 Pac. Rep. [Cal.], 502; Fontaine v. Bush, 40 Minn., 141; Simmons Hardware Co. v. Mullen, 33 Minn., 195; Taylor v. Mueller, 15 N. W. Rep. [Minn.], 413.
In Ex parte Parker, supra, this court quoted with approval the following language used by the New York court in the opinion in Caulkins v. Heilman, 47 N. Y., 449: “No act of the vendor alone in performance of a contract void by the statute of frauds can give validity to such contract. * * * Where a valid contract of sale is made in writing, a delivery pursuant to such contract will pass the title
Acceptance is the receipt of a thing with the intention to retain it. In order to constitute a binding acceptance under a contract for the sale of personal property, invalid by the statute of frauds, there must be some equivocal act on the part of the purchaser showing an intention to accept and appropriate the property as owners. (Stone v. Browning, 68 N. Y., 601; Simpson v. Krumdick, 28 Minn., 355; Taylor v. Mueller, 15 N. W. Rep. [Minn.], 413.) In a suit upon a contract within the statute of frauds, the petition must state facts taking the contract out of the statute,, or the pleading will be demurrable. (Babcock v. Meek, 45 Ia., 137 ; Burden v. Knight, 82 Ia., 584.) The conclusion is irresistible that the allegation of the delivery of the corn is not sufficient to take the contract out of the operation of the statute, and thei’efore the demurrer to the amended petition should have been sustained.
It is ui’ged that the defendant waived its exception to-the ruling on the demurrer by answering to the merits. Conceding this point to be well taken, still the question of' the statute of frauds was repeatedly raised during the trial on the introduction of testimony to establish the contract and to show the defendant accepted the corn under the terms of the parol agreement. This evidence was admitted' over the objection of the defendant that it is not alleged in the petition that it accepted or received any part of the corn, sued for, and that the contract was void under the statute. This evidence was clearly inadmissible, without the pleading was amended. It is a fundamental rule that the allegata et probata must agree.
The last was an action to enforce specifically the performance of an oral agreement for the sale of land. The defendant neither pleaded the statute of frauds, nor objected to the admission of evidence on the trial, because the contract was within the statute, but at the close- of the trial requested the court to find as a fact that the contract rested in parol, and, as a conclusion of law, that it was void. It was held that the question of the validity of the agreement was sufficiently raised. There are a few cases which hold that the statute of frauds must be specially pleaded to be available, some of which are cited in the brief of defendant in error, but the decided weight of the decisions, as well as the better reason, is the other way.
We will next notice an assignment of error based upon a ruling of the court on the introduction of the testimony. The plaintiff below was permitted to prove, over objections
Complaint is made of the giving of the fourth paragraph of the court’s charge to the jury, which is as follows:
“4. The defendant in his (its) answer denies the making of the contract sued on, and alleges that the price agreed to be paid for the corn purchased of the plaintiff was the average market price between Stanton, and Pilger markets, in said county, on a day to be selected by the plaintiff, between December 24, 1886, and May 1, 1887.”
The above was one of several instructions given, stating the issues in the case, and, when taken in connection with the other instructions, was not misleading. It clearly, and in concise language, stated to the jury one of the issues presented by the pleading and the evidence.
Exception was taken to the giving of the following instruction :
. “ 8. But if you find that there was no agreement made as to the price the plaintiff was to receive for said corn, then you should award him for the corn received by the defendant, and unpaid for, the fair market value of the same at the time of its delivery as shown by the evidence, if any such evidence is before you, with interest thereon from the time of its delivery, at the rate of seven per cent per annum.”
The instruction under consideration was in direct conflict with instruction No. 5, given by the court, which told the jury that “before the plaintiff is entitled to a verdict for the amount sued for, it is incumbent upon him to prove by a preponderance of the evidence that he made the contract with the defendant as alleged, whereby the defendant agreed to pay the plaintiff the market price of the corn in Stanton county on a day selected by him between the time of delivering the same and the first of May, 1888.” By the one instruction the jury were informed that the plaintiff could only recover in case the evidence established a special contract, while by the other they were told he was entitled to the market value of the corn, even though there was no stipulation as to the price he was to receive therefor. These conflicting statements of the law before the jury left them in doubt as to the paragraph upon which they should rely. It should be stated that instruction No. 8 was predicated upon evidence introduced by the defendant and against the objection of the plaintiff below, showing the market value of the corn at the time of its alleged delivery. We are persuaded, however, that the defendant was not in the least prejudiced by the giving of this instruction, since had the jury, in arriving at their verdict, allowed the plaintiff the market value of the corn, the recovery would have been
The defendant asked, and the court refused to give, the following instruction:
“12. If the contract claimed by the plaintiff, in his petition, was wholly oral, that is, by word of mouth, and no part of the purchase money was paid, or no part of the corn was delivered thereunder, then the plaintiff has failed to make out his case, and your verdict must be for the defendant. And there would be no such delivery of the corn to the defendant if the plaintiff simply stored his corn, or a part of it, in the defendant’s crib, under an arrangement, whereby it was to remain his property until such time as he saw fit to sell it to the defendant.”
This request to charge correctly states the law relating to the statute of frauds, which was one of the questions in the case, and should have been submitted to the jury. It was not covered by any instruction given, and it was error to refuse it. (First Nat. Bank of Madison v. Carson, 30 Neb., 104.)
. There are other errors assigned upon the giving and refusing of instructions, which need not be noticed.
The judgment of the district court is reversed, and the cause remanded for further proceedings, with leave to the plaintiff to amend his petition, if he so desires.
Reversed and remanded.