Rentch v. Long, 27 Md. 188

Rentch v. Long

27 Md. 188 | Md. | 1867

Baktol, J.,

delivered the opinion of this Court.

This case is not to be distinguished from Eichelberger vs. McCauley, 5 H. & J., 213, in which it was decided that a contract for the delivery of wheat at a future period, which wheat, at the time of the contract, was in the stack unthreshed, was not within the Statute of Frauds. The ground upon which that decision was placed was that work and labor being necessary to pre*198pare the wheat for delivery, it was not a sale of goods, wares and merchandize within the meaning of the 17th section of the Statute. In the opinion of the Court, pronounced by Judge Earle, and concurred in by Chase, C. J., and Buchanan, Dorsey and Martin, it was said the “ distinction between mere contracts of sale of goods, and those contracts for the sale of goods where work and labor are to be bestowed on them previous to delivery, and subjects are blended together, some of which are not in the contemplation of the Statute, has too long prevailed to be at this day questioned.”

Whatever opinion we might entertain on this question if it were presented to our consideration for the first time, we are not willing to disturb the rule established by Eichelberger vs. McCauley, and which has remained unquestioned in Maryland for so long a period. That this case falls directly within the same 'principle is too clear to require much argument.

Here, according to the evidence as found by the jury, the subject of the contract was two thousand bushels of corn, which at the time was in the field ungathered and unshucked, and which, by the contract, the plaintiff was entitled to have delivered to him at a future time gathered and shucked. The article was not at the time of the contract in a condition to be delivered, and according to the finding of the jury, which was warranted by the evidence, work and labor were necessary to be done upon the article purchased and entered into, and formed a part of the consideration for the price to be paid-.

In Eichelberger vs. McCauley the labor which entered into the consideration of the contract was the threshing of the wheat; here it is the gathering and shucking of the corn, so that the cases are identical in principle.

Some argument was based by the appellant on the fact that in this case the work and labor were not to be performed by the vendor or his agent employed for that pur*199pose, but by his tenants who occupied the land, cultivated the crop, and were bound to deliver the corn as rent. But this makes no difference in principle ; if by the contract the véndor was bound to deliver, and the purchaser was entitled to receive the article in a condition different from that in which it was at the time of the contract, and the work and labor necessary to be done upon it entered into and formed a part of the consideration for the price to be paid, the case is within the principle of Eichelberger vs. McCauley, and there was no error in granting the prayer of the plaintiff below. And for the same reasons the first and last prayers of the defendant were properly rejected.

(Decided 12th June, 1867.)

The defendant’s second, third and fourth prayers ignore the material and important fact testified to by all the witnesses, that the corn referred to in the contract was the particular corn of the plaintiff then standing in the field, and which, by the contract, was to be gathered and shucked before delivery, which, as we have said, takes the case out of the Statute ; these prayers go upon the hypothesis that the case is one of a mere sale of two thousand bushels of corn, thus omitting to notice material testimony, which changes the whole character of the case. They could not therefore be properly granted.

Judgment affirmed.