Young v. Alexander, No. 21300

No. 21300 | Miss. | Oct 15, 1920

Smith, C. J.,

delivered the opinion of the .court.

The appellant sued the appellees upon an alleged oral agreement by which they agreed to purchase from him logs “to be delivered on the right of way of the Delta Southern Railway at Bear Creek Station,” and to pay therefor a price per thousand feet amounting in the aggregate to the sum of four thousand and thirty-six dollars and fifty-si?, cents. The declaration alleged the delivery of the logs by the plaintiff at the place agreed on in the contract, and that the appellees declined to pay him therefor. The appellees pleaded the statute of frauds (section 4779, Code of 1906; Hemingway’s Code, section 3123), alleging specifically that none of the .logs ,had been received by them. The evidence for the plaintiff disclosed the making of the oral agreement alleged in the declaration, and the placing of the logs by the plaintiff on the right of way of the Delta Southern Railway at Bear Creek Station, and that when notified thereof the appellees declined to receive them. This evidence was excluded by the court after the plaintiff had rested his case, and there was a verdict and judgment for the appellees.

The contract for the sale of the logs being verbal, and the appellees not having paid or secured the payment of any part of the purchase money, is void under the statute hereinbefore referred to, unless the logs were received by the appellees pursuant to and in fulfillment of the contract. The word “receive” as used in this statute means “to take into possession and control,” and in order for a buyer to receive property pursuant to and in fulfillment of a contract for the sale thereof he must take it into his possession and control lyith intent to become the owner. 25 R. C. L. 621; Mech. on Sales, section 376; Shindler v. Houston, 1 N.Y. 261" court="NY" date_filed="1848-04-05" href="https://app.midpage.ai/document/shindler-v--houston-3599987?utm_source=webapp" opinion_id="3599987">1 N. Y. 261, 49 Am. Dec. 316; Hinchman v. Lincoln 124 U.S. 38" court="SCOTUS" date_filed="1888-01-09" href="https://app.midpage.ai/document/hinchman-v-lincoln-92092?utm_source=webapp" opinion_id="92092">124 U. S. 38, 8 Sup. Ct. 369, 31 L. Ed. 337" court="SCOTUS" date_filed="1888-01-09" href="https://app.midpage.ai/document/hinchman-v-lincoln-92092?utm_source=webapp" opinion_id="92092">31 L. Ed. 337.

To hold that a mere delivery of the property sold at the place designated therefor in the contract of sale is a compliance with the statute ivould defeat its manifest purpose, which is to require tlie doing of an act by the purchaser, to-wit, taking possession of the property purchased,'which may be considered an admission by him of the contract of sale. 25 R. C. L. 621, 2 Elliott on Contracts, section 1337. Johnson v. Tabor, 101 Miss. 78, 57 So. 365, relied on by counsel for the appellant, can have no application here, for the statute of frauds was not there involved.

Tlie appellant, having failed to prove that the appellees received any of the logs alleged to have been sold to them,, is not entitled to recover, and the court below committed no error in excluding his evidence.

Affirmed.