190 Iowa 1350 | Iowa | 1921
— On the 15th day of April, 1918, plaintiff offered for sale at public auction 765 bushels of corn, located on his farm in Marion County, Iowa. The defendant was the highest bidder, at $1.31 per bushel. The corn was to be paid for according to the terms of the sale, cash or note, the terms being announced when the sale commenced. Furthermore, it was sold to the highest bidder ‘ ‘ at weight, ’ ’ and the purchaser was to haul it away. Plaintiff testified:
“Mr. Converse came to me, after he had bought the corn, and asked me if he could leave it there. I told him ‘no,’ to get it right away, as there was another man coming on the place, and I did not know who he was going to be. He said, !I have a truck anyhow, and as soon as it dries up,’ — it was raining that day, — 1 it will only take me a couple of days to haul it off. ’ ’ ’
Probably as a result of burning some brush in close proximity to the corncribs, the fire was communicated to the cribs, resulting in a loss of the corn.
Appellant relies upon the following assigned errors for reversal: (1) There was no sufficient delivery of the corn in question to satisfy the statute of frauds. (2) There was no' sufficient delivery of the corn in question to pass title to the purchaser. (3) That the court should not have submitted to the jury the question in issue. (4) That Instruction No. 7 was erroneous.
I. Was the delivery sufficient to comply with the requirements of the statute of frauds ¶
The statute provides:
The statute of frauds is a rule of evidence. It does not
In cases of this character, both parties must intend to transfer the title, and the vendor must surrender and the purchaser must accept complete dominion and control over the subject-matter of the sale. The trial court so instructed. True, the corn was not weighed, but the defendant purchaser was to haul it away. The intent is the ultimate test; and under the evidence, it is reasonable to conclude that the vendor surrendered dominion over the corn, and the vendee understood that he, then and there, had possession thereof, and was to remove same from the premises as soon as possible.
The act in the instant case constitutes a constructive delivery, since the subject-matter of the verbal agreement for sale is pointed out to the purchaser, and he is given authority to take it when he wishes. Under such circumstances, there is a compliance with the statute. Brown v. Wade, 42 Iowa 647; Smith & Son v. Bloom, 159 Iowa 592; Cable Co. v. Miller, 162 Iowa 351; Allen v. Elmore, 121 Iowa 241; Harris v. Beebe, 144 Iowa 735.
In Welch v. Spies, 103 Iowa 389, a crib of corn was placed at the disposal of the purchaser after a verbal sale, and the vendor had agreed to shell part of the corn and haul it to a .place designated by the purchaser. It is held that the title passed to the purchaser, and that it was his loss when the corn burned.
Delivery does not imply a physical change of location, but is to be determined by the intent of the parties at the time of the sale to transfer to the vendee the dominion and control over the thing purchased.
II. Was the court in error in submitting to the jury the question of the sufficiency of the delivery for the purpose of passing title and the satisfying of the provision of the statute of frauds?
III. Were the instructions erroneous?
In Instruction No. 7, the jury was further told:
“If you fail to find from the preponderance of the evidence that the said corn was in fact delivered to the defendant at the time of the sale, then the defendant cannot be liable in this case, and your verdict should be for the defendant. The real question in this case is, Who was the owner of the corn in question at the time it was destroyed by fire? If you fail to find from the preponderance of the evidence that said corn was delivered to the defendant, then, as a matter of law, plaintiff was the owner of said corn at the time it was destroyed, ’ ’
We find no error in the record, and the judgment entered by the trial court is, therefore,- — Affirmed.