88 N.W. 1026 | N.D. | 1903
This action was commenced in justice’s court. The plaintiff recovered judgment in that court and in the district court. The action is brought to recover damages for breach of a contract to exchange personal property. The facts as set forth in the complaint are the following: That on or about February 14, 1898, the defendant agreed with plaintiff to exchange 375 bushels of seed wheat, then on defendant’s farm, for 375 bushels of wheat belonging to plaintiff of the grade of No. 1 hard wheat; that plaintiff agreed to deliver his wheat at the elevator at Aneta before April 1st of that year, and to procure storage tickets therefor, and turn them over to defendant before said date; that all storage charges on said wheat were to be paid by plaintiff; that at the time of such agreement the defendant delivered to plaintiff one-half bushel of the seed wheat to be exchanged; that under such agreement the plaintiff was to receive defendant’s wheat at defendant’s place whenever the storage tickets for plaintiff’s 375 bushels of wheat issued by the elevator at Aneta should be turned over to defendant before April 1st; that plaintiff tendered to defendant such storage tickets for 375 bushels of No. 1 hard wheat, and demanded the delivery to plaintiff of the balance of the wheat on defendant’s place so agreed to be exchanged by him; that defendant refused to turn over said wheat, disclaiming any obligation to do so, and stating that the same had been by him sold to another. Damages were claimed in the sum of $71.23. The answer is a general denial, with a statement, claimed as a defense, that the contract set forth in the complaint was within the statute of frauds, and therefore not valid, as there was no delivery of any
First, it is claimed that the evidence fails to show that a contract was entered into. We have examined all of the evidence bearing on this as well as the other assignments of error. Whether a contract was entered into between the parties in relation to the wheat in question was a question concerning which the parties differed. There was a conflict in the evidence as to this point. According to plaintiff’s testimony, the contract was complete and unconditional, and mutually agreed upon by the parties some time in February, 1898, and part of the wheat then delivered thereunder. He was corroborated by another witness, who was present during the negotiations. Whether the contract was actually entered into by the parties or not was submitted to the jury under proper instructions to the effect that, if not entered into as claimed by the plaintiff, he could not recover. The verdict of the jury in plaintiff’s favor was supported by a clear preponderance of the evidence, and is therefore amply sustained by the evidence. It would result in no benefit to any one for us to discuss or review in detail the evidence bearing on this point.
The next error claimed is that the evidence does not establish that the plaintiff has been damaged in any way by reason of the refusal of the defendant to comply with the contract. This alleged error is based upon the theory that there is no evidence in the record as to the value of the wheat delivered by the plaintiff at the elevator at the time when the plaintiff tendered the tickets to the defendant. The time when the tickets were so offered to the defendant has not been precisely fixed by the witnesses, for the plaintiff. The defendant testifies that they were tendered on March 1st. The plaintiff testifies that it was early in March. It was for the jury to determine on what day the tender was. made. Whatever the day in March, the evidence showed what the market value of such wheat was, both at Lakota and at Aneta, during all of March after the 3d thereof; and, the jury having passed upon the question, and assessed the damages, our inquiry is directed solely to a determination of the question whether there is any evidence to support
It is urged that the contract was within the statute of frauds, and therefore not an enforceable contract, for the reason that no part of the seed wheat was delivered when the contract was entered into, and no part of the purchase price paid. It is claimed that .the one-half .bushel was delivered as a sample, with which the quality of the wheat was to be tested, and this one-half bushel then returned. The plaintiff claimed in his evidence, and was corroborated by another witness, that the one-half bushel was delivered to be retained by plaintiff, and that it was distinctly understood and stated between them when the contract was made that it was not to be returned to defendant, but was accepted as a part of the 375 bushels to be delivered later. These conflicting claims were submitted_ to the jury for determination under instructions that, if the plaintiff’s claim was true, the contract was valid, and enforceable, and that if the defendant’s claim was true, the.contract was not valid, and plaintiff could not recover if they found the defendant’s contention sustained by the evidence. Under § 3958, Rev. Codes, the delivery to the buyer of a part of the property sold at the time of the contract to sell renders the contract valid to the same extent as though he pays a part of the purchase price at such time. The passing of a consideration — that is, a part of the property or a part of the price — between the parties renders the contract valid and enforceable as to both, and the provisions of the statute are satisfied, and the fact that it was not in writing cannot be properly urged. Benj. Sales (6th Ed.) p. 163. Under the statute (§ 3997) the same rules are applicable in contracts for. exchange of personal property as in contracts to sell for money so far as the statute of frauds is concerned. The same rules are also applicable so far as damages recoverable are concerned. Section 3998, Rev. Codes; Dowling v. McKenney, 124 Mass. 478.
The motion to strike out all of the testimony of the witness Tanton was properly denied. The ground was urged against such testimony that it did not tend to show the price of wheat at Aneta,
This disposes of all the errors assigned, and it follows that the order appealed from is affirmed.