121 Neb. 775 | Neb. | 1931
This is an action to recover $320 in damages on a claim that defendant withheld from the possession of plaintiff 2,000 bushels of corn which the latter purchased from the former for $1,520. Defendant demurred to the petition. The demurrer was sustained. Plaintiff refused to plead further and the action was dismissed. Plaintiff appealed.
The petition was challenged by the demurrer on the grounds that it did not state facts sufficient to constitute a cause of action and that the transaction pleaded was a verbal contract for corn exceeding $500 in value and unenforceable under the statute of frauds, a provision of which follows:
“A contract to sell or a sale of any goods or choses in action of the value of five hundred dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf.” Comp. St. 1929, sec. 69-404.
In substance the petition alleges that plaintiff was the owner of 2,000 bushels of corn August 15, 1930; that defendant sold the corn to plaintiff August 5, 1930, for $1,520, “under a verbal agreement wherein the said defendant consented to the immediate resale of said goods by the plaintiff to any person or persons whomsoever, and agreed to place plaintiff in possession of said corn on or before the 15th day of August, 1930, and wherein the plaintiff agreed to pay the said defendant the said price at the time the said possession was given;” that plaintiff, with the knowledge and consent of defendant, sold the corn to a third person August 5, 1930; that defendant was plaintiff’s bailee of the corn from August 5, 1930, until August 15, 1930; that plaintiff demanded of defendant delivery and possession of the corn, which were refused; that the value of the corn August 15, 1930, was $1,840; that defendant wrongfully detained possession of the corn from plaintiff to his damage in the sum of $320.
Affirmed.