26 Mo. 221 | Mo. | 1858
delivered the opinion of the court.
The difficulty we encounter in supporting the judgment of the court below is in the petition of the plaintiff, its want of conformity to the proof, and the instructions given. The action was tried on the theory that there was a sale of the slave by Cason to Suggett. There is evidence in the record tending to support this view of the transaction, on which, if a verdict had been found for the plaintiff, no court would have disturbed it. But to our minds the petition sets out only an agreement to sell the slave at a future day, and for a violation of this agreement the plaintiff was only entitled to damages for the non-delivery of the slave at the stipulated time, and not to the slave himself or his equivalent value. There is no averment in the petition that the slave was actually sold to Suggett, whereby the property would have been changed. Had an actual sale been alleged, the evidence of the fact ought to have been submitted to the jury, and a verdict in affirmance of that view of the subject should not have been disturbed. The petition alleging only a contract to sell, those instructions asked by the defendant, founded on that view of the transaction, should have been given, and that instruction, given for the plaintiff on the hypothesis that there was a sale, should have been refused.
We do not regard the statute of frauds as interposing any obstacle to the plaintiff’s right of recovery. As to the objection, arising under the statute, that the contract was not performed within a year, it is now well settled that the statute only applies to those contracts which by their terms are not to be performed within one year. If the contract is such as that it may by its terms be performed within a year, the statute does not apply. In the case before us there was no time limited within which the work was to be performed. It might have been done immediately; consequently the contract was not affected by this provision of the statute. (Foster v. McO’Blenis & Matthews, 18 Mo. 88.)
As to the other objection arising under the statute, that there was no note or memorandum of the contract of sale, it may be answered that the contract having been entirely per-, formed on one side, the other side can not interpose the de-fence arising under this section. (Holbrook v. Armstrong, 1 Fairf. 31; Long on Sales, 56; Donaldson v. Reed, 3 B. & A. 899.) There is some conflict of opinion on this question; but it seems to us the weight of authority and reason is in support of the proposition, that if goods are sold and delivered, at a longer credit than one year, without writing, the delivery of the goods being an execution of the contract on one part, the vendee should be bound by the agreement.
The other judges concurring, the judgment will be reversed and the cause remanded.