49 Mo. App. 386 | Mo. Ct. App. | 1892
The plaintiff sued defendant to recover damages for failing to deliver two thousand bushels of wheat to plaintiff under a verbal agreement. The plaintiff had judgment, and the defendant has appealed. The principal error of which defendant complains is in respect to the action of the trial court in instructing the jury that if they believed from the evidence that about the first day of August, 1891, defendant entered into an agreement with the plaintiff by the terms of which agreement defendant sold to plaintiff one thousand bushels of wheat at seventy-four cents per bushel to be delivered on board the Chicago & Alton railroad cars at Mt. Leonard station, said wheat to be paid for on a basis of seventy-four cents for number 2 wheat, St. Louis weights and grades to govern, and that as a part of the consideration for said wheat plaintiff agreed to furnish defendant with sacks to-handle said wheat, and that plaintiff did as. a part performance of his agreement furnish defendant with said sacks within a reasonable time after requested so to do by defendant; and that defendant on or about the twenty-first day of August, 1891, refused to comply with his said agreement, and refused .to deliver said wheat, and did on or about, said date notify the plaintiff that he declined to deliver said wheat, then your finding must be for the plaintiff, and you will assess his damages at the difference between the price agreed to be paid by the contract and the market value of the wheat at Mt. Leonard on the day defendant refused to deliver the wheat to plaintiff, not exceeding in amount the sum of $200.
The abstracts are entirely barren of any evidence tending to show'that the plaintiff and defendant entered’ into an agreement, by the terms of which the defendant sold to plaintiff one thousand bushels of wheat at seventy-
Again the undisputed evidence was that the defendant agreed to sell the plaintiff his crop of wheat. He did not agree to deliver a specific number of bushels,
As the cause will be remanded it is proper to remark that the cause of action is not based upon a written contract, but, if it were, the written proposition or offer of the plaintiff already referred to would not be sufficient to withdraw the case from under the operation of the statute of frauds. It was signed by the plaintiff only, addressed to no one, and, besides, there is some doubt whether it was accepted by the defendant. It was not signed by the party sought to “be charged therewith,” nor is it sufficient in form or contents to meet the requirements of the statute. Browne on Statute
Of course the statute of frauds would apply if there is no part performance of the verbal agreement sued on shown in the evidence.
The judgment will be reversed and the cause remanded.