Rentch v. Long

Statute of Frauds — Contract. A contract to deliver corn at a future period, which com at the time of the contract is in the field ungathered and unshucked, is not within the Statute of Frauds. "Work and labor were necessary to prepare the corn for delivery, and entered into and formed a part of the consideration for the price to he paid; and the fact that the work and labor were not to be performed by the vendor or by his agents employed for that purpose, but hy his tenants who occupied the land, cultivated the crop and were bound to deliver the com as rent, makes no difference in principle.

Appeal from the Circuit Court for Washington County. This was an action of assumpsit brought hy the appellee to recover damages from the appellant, for the violation of a contract of sale of two thousand bushels of corn, which were to have been delivered hy the latter to the former at fifty cents a bushel. Sometime in October or November, 1863, the appellee met the appellant, and asked him if he had any corn for sale ? The appellant replied that he thought he woiild have about two thousand bushels to spare, and asked the appellee what he was paying for it, aftd where it was to be delivered? The appellee replied, that he was paying fifty cents a bushel, to he delivered out of the field on his 1'arm. The appellant said he should have the corn, hut did not say where it was. He did not raise the corn himself, hut rented his farms to different tenants, from whom he received for his rent a share of the produce. At the date of the contract of sale the corn was in the field, ungathered and unshucked, and had to he gathered and shucked, in order to he delivered hy the appellant to the appellee. No part of the corn was ever delivered, though the appellee was ready and willing to receive and pay for it according to the agreement. Exception: Upon all the evidence in the cause the plaintiff offered the following prayer: If the jury believe from the evidence that the defendant agreed and bargained, verbally, with the plaintiff, some time about the latter part of October or the first of November, 1863, to sell to him two thousand bushels of corn, at fifty cents per bushel, to he delivered to him hy the said defendant, at a time or times subsequent to the time of making such agreement, and before the institution of this action; and that the said corn was, at the time of said agreement, in the field, ungathered and unshucked, and was so understood by both of said parties, and that said corn had to be gathered and shucked, in order to the delivery thereof by the. said defendant to the plaintiff, and that the defendant, after the said corn was gathered and shucked, altogether failed and refused to deliver the same, or any part thereof, to the plaintiff, and that the plaintiff was, and continued ready and willing to receive and pay for said corn according to agreement, then said plaintiff is entitled to maintain an action on said contract against the defendant, and the Statute of Frauds forms no har to such action.” The defendant then offered ' prayers, substantially as follows : 1st. If the jury find that in the latter part of October or the beginning of November, 1863, the plaintiff met the defendant in the public road, and told him that he was in the corn market, and asked the defendant whether he had any for sale, and the defendant replied that he thought he would have about two thousand bushels to spare, and asked the plaintiff what he was paying, who replied fifty cents a bushel, and the defendant then asked when it was to be delivered, and the plaintiff said at his (the plaintiff’s) farm, and the defendant then said he should have it, but did not say where the corn was, and that nothing was said about it as to whether it was good, bad or indifferent; that the defendant did not deliver or offer to deliver any part of the corn ; but that the plaintiff was ready to comply with his part of the contract; that no money was paid by the plaintiff to the defendant for the corn; that nothing was said about payment for it, nor was there any agreement or memorandum in writing between them for the sale of it; that then the same is a contract for the sale of goods, wares and merchandize, and is within the Statute of Frauds, and there being no delivery of any part of said corn, nor any part of the purchase money paid therefor, and no agreement or memorandum in writing of said contract, the plaintiff is not entitled to recover. 2d. If the jury shall find from the evidence, that in or about the month of October, 1863, the plaintiff contracted with the defendant, for the purchase of two thousand bushels of corn, at fifty cents per bushel, to be delivered by the defendant in a reasonable time thereafter, and then to be', paid for by the plaintiff. And shall further find, that no part of said corn was delivered by the defendant to the plaintiff, nor that any part of the purchase money therefor was paid by the plaintiff to the defendant, and that said contract was not in writing, then the plaintiff is not entitled to recover. 3d. If the jury find from the evidence, that the plaintiff purchased of the defendant two thousand bushels of corn, at fifty cents per bushel, and that the defendant was to deliver the same in a reasonable time thereafter, and the plaintiff to pay for the same ; and should further find, that no part of said corn was delivered to the plaintiff, nor any part of the purchase money paid therefor by the plaintiff, nor that such purchase was reduced to writing, that then the same is a sale of goods, &c., and within the Statute of Frauds, and the plaintiff is not entitled to recover, although the jury should further find, that the said defendant had, at the time of such purchase and sale, his farms rented to tenants, and that as landlord he was entitled to a rental share of the crop of corn, and from which rental share, when gathered and delivered by his said tenants to him, he could fill said contract. 4th. If the jury find from the evidence, that the plaintiff and defendant contracted for the purchase by the plaintiff of the defendant two thousand bushels of corn, at fifty cents per bushel, to be delivered in a reasonable time thereafter by the defendant, and to be paid for by the plaintiff, and that if said contract be found to be a contract for the sale of corn by the bushel alone, and exclusive of any work or labor to be done or performed upon it; and further find, that no part of the corn was delivered by the defendant, nor any part of the purchase money paid by the plaintiff therefor, nor any agreement or memorandum in writing of such contract, that then the same is within the Statute of Erauds, and the plaintiff is not entitled to recover.' 5th. That the contract declared upon in this cause and given in evidence, is a contract for the sale of goods, wares and merchandize, and is within the Statute of Erauds, and that by the evidence, there being no agreement or memorandum in writing of the same, nor any part of the purchase money paid upon the same as earnest to bind the contract, nor any part of the said corn so delivered to the plaintiff, the plaintiff is not entitled to recover. The Court (Weiser, J.) granted the prayer of the plaintiff and rejected the prayers of the defendant; to this ruling the defendant excepted, and the verdict and judgment being against him he appealed.