52 Barb. 482 | N.Y. Sup. Ct. | 1866
1. It is claimed by the defendant, that at the time of making the contracts in question, the subject of the contracts, hop roots, was real estate; that they were perennial, and not “fruotus industriales,” and therefore the contract was within the statute of frauds, (2 R. S. 134, 135, §§ 6, 8,) which requires the agreement to be in writing, &c. I think there is no question now, that hop roots, when rooted in the ground, are a part of the real estate of the proprietor of the soil, and would pass to the purchaser by a conveyance of the land, (Bishop v. Bishop, 11 N. Y. Rep. 124,) and wóuld pass to the heir by inheritance. In this case it was no portion of the plaintiffs’ real estate, which they agreed to sell, or to purchase for the defendant; nor was it the real estate of any other person, that the plaintiffs agreed to deliver to the defend- | ant. f The contract was an executory contract to purchase, | or to sell and deliver to the defendant, an article of merichandise, which, when delivered, would be personal property. Doubtless, in the very nature of things, both parties to the contract contemplated that the hop roots to be delivered, in order to be of any value, must, at the time of making the contract, of necessity, be then rooted in the ground. They could not well, otherwise, be preserved, and they would, therefore, at that time, be the real estate of somebody. It is equally fair and legitimate to presume that both parties contemplated, at the time, that before delivery a severance from the freehold must take place, so that the article, when delivered, would be personalty. It was in that character that the article was to be delivered and received. Had the agreement been for a present or executed sale of the hop roots of the plaintiffs, then forming a part of their real estate, even though the plaintiffs were to make the severance, so as to make the article personal estate at the time of delivery, it would present a different feature. In this case the plaintiffs neither agreed to sell, nor the defendant to purchase, an interest in real
2. But there is another ground in this case that would take the case out of the statute of frauds, if otherwise within it. I think there was a note, or- memorandum in writing, of the contract subscribed by the defendant, the party to be charged thereby. The statute does not require that this memorandum should be made at the time of making the agreement; it may be made at anytime after-
3. There is another ground upon which this contract can be sustained; to wit, that of an original contract or undertaking on the part of the defendant to employ the plaintiffs to buy hop roots for the defendant, and to pay them as-a compensation therefor, six dollars per bushel; or in other words, for work and labor to be done and performed and materials found and for money paid, laid out and expended for the defendant. The testimony was as follows: “James Zielly, (plaintiffs’ brother and agent,) wanted to know what we would buy a hundred bushels of hop roots for, to be delivered at the depot of the Ogdensburgh and Lake Champlain railroad, here, for his brother ? We agreed to luy them for him, at six dollars per bushel. He was to pay us $50 down, and the balance at the time of the delivery, the delivery to be at the first ‘ hop rooting.’ I told him we should have to pick them up of different ones, and we could get the first hop roots. I expended my own money in the purchase of roots.” There was no
4. The main point of defense, upon which reliance was made was, that, assuming the agreement to be a contract for the sale of personal property exceeding $50 in value, and there being, as conceded, neither a memorandum m writing nor a delivery of any part of the property, no part of the purchase money was paid down at the time of the making the contract. The $50 that was to have been paid by the terms of the oral agreement, was not paid at the time the parties first entered into the contract; but a few days afterward the defendant’s agent called upon the plaintiffs and then paid it, and it was accepted by the plaintiffs. Upon the authority. of the case of Bissell v. Balcom, (40 Barb. 98,) this would bring the case within the statute of frauds. By that case, the subsequent payment of the money, is not a compliance with the statute which requires it to be paid at the time. With all my respect for the authority of that case, and for the opinion of the distinguished justices who adopted that opinion, I am not able to concur in its soundness. It is contended that without that construction, the words at the-time, in the statute, are useless, and that a different construction would repeal the statute, or nullify those words. Such is not my view. Statutes are always to be sensibly construed. It is doubtless true that these mere words of agreement, in such a contract to purchase, would be a void agreement, and would doubtless continue to be a void agreement, until some act should be done to make it binding. But when parties have thus agreed by words ; where their minds have met and concurred as to the terms, while
In no view that I have been able to take of this case is there any legal defense to it. The judgment should be affirmed.
James, Posehrans, Potter and Boches, Justices.]