Nye v. Taggart

The opinion of the court was delivered by Prout, J. The county court on the trial of this cause having expressed the opinion that the plaintiff was entitled to recover, the defendant submitted to a verdict, and excepted. It seems to be conceded that, upon .the facts, the contract of purchase of the farm is invalid, for the reason that it is within 'the Statute of Frauds, and if so, the defendant’s title to the steers and mowing machine, in controversy in this action, is also invalid, the contract being entire. But it is claimed by the defendant that this [299] action cannot be maintained, for the reason that the defendant took possession of the property in dispute by leave and with the assent of the plaintiff, and that, upon .this point, the evidence being contradictory, it should have been submitted to the jury for them to find the fact. Conceding that the plaintiff did assent or give the defendant liberty to take the steers and mowing machine, he could revoke it at any time before the defendant acted upon it. Wallis v. Truesdell, 6 Pick. 454. We learn from the case, and the evidence is not contradictory upon this point, that the defendant’s wife died February 20th, 1866. The day after she was buried, Joseph Taggart, at the request and on behalf of the plaintiff, gave notice to Nelson Taggart, with whom the trade for the farm was negotiated, that he did not wish to do anything more about it, as his wife was dead, who, it appears, was.interested in the contemplated purchase, and was to take the conveyance. This, we think, was a revocation of the license to take the property, and seems to have been so regarded by Nelson Taggart. He acquiesced, remarking, in reply, that it would make no difference ; that he might as well remain on the farm, and, at that time, made-no claim to the property in dispute, or intimated that he or the defendant had a right to take it. And the notice of revocation we think effectual as against the defendant. It is apparent that it came to his knowledge before he took the property, or why take it secretly, in the night and in the plaintiff’s absence? As to the question that the contract had been in part executed, it appgars that the possession of the farm was reserved by Taggart until the first of April. The deed was never delivered, and the chopping of the wood by the plaintiff on the 14th of February cannot be referred to or connected with that contract. But, were it otherwise, and the defendant, in fact, had a debt against the plaintiff, growing out of a valid sale and conveyance of the farm, payable partly in the specific property in controversy, the plaintiff could not rightfully possess himself of it, only on a voluntary delivery of the plaintiff. Then again the purchase of the farm, as shown by the evidence detailed in the case, was for Mrs. Nye, who was to furnish the means, mainly, to pay for it. She is in no way connected with the cutting of wood — neither knew of or directed it. The judgment is affirmed.