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SARATOGA LAND AND INVESTMENT COMPANY v. JENSEN
Beard, Chief Justice. This action was brought in the district court of Carbon county by the defendant in error, Gus Jensen, against the plaintiffs in error, The Saratoga Land and Investment Company and S. H. Clammer, to recover the possession of certain plows. The case was tried to the court without a jury, and judgment rendered in favor of the plaintiff below for the possession of the property and one hundred dollars damages. Defendants below bring error.
Both Jensen and the Investment Company claimed title to the property by purchase from one Ludlom; Jensen claiming to have purchased the property on July 1, 1909, and the Investment Company July 5, 1909.
The defendants below claimed that Jensen’s alleged purchase was void because the property was of the value of fifty dollars and more, was not evidenced by any writing, the property was not delivered, and no part of the purchase money paid; and that, therefore, the contract of sale came within the statute of frauds and was void.
The statute is as- follows: “Any contract for the sale of any goods, chattels or. things in action for the price of fifty dollars or more, shall be void, unless: First — A note or memorandum of such contract be made in writing and be subscribed by the party to be charged thereby; or, Second — Unless the buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action; or, Third — Unless the buyer shall-at the time pay some part of the purchase money.” (Sec. 3752, Comp.
Stat. 1910.) The defendant 326 in error does not claim that the case comes within either the first or second exception, but contends that it does come within the third. It appears that Jensen owned or controlled a traction engine, and Ludlom owned the plows in question, and that they did certain plowing for the In-véstment Company, of which Clammer was president and agent; that Jensen was to pay the expenses of such plowing, and the profits were to be equally divided between him and Ludlom.
That, on July 1, Jensen, Ludlom and Clammer met and agreed that the amount due from the company for the plowing was $2,100. That after deducting the expenses the profit was $515.16. That at that time Ludlom was owing Clammer $586, which, by mutual consent, was deducted from the price of the plowing and the balance paid to Jensen, and at the same time Clammer. gave to Jensen a receipt for the $586 so paid for Ludlom. Thus far there seems to be no controversy.
The effect of this transaction is the same as though the Investment Company had first paid to Jensen the expenses of the plowing, and had them paid to Jensen and Ludlom each one half ($257.58) of the profits, and that Jensen had then handed to Ludlom $328.42, which, with his half of the profits, making $586, he paid to Clammer.
Jensen claimed that at that time, and as a part of the same transaction, Ludlom sold the plows to him for the agreed price of $400, and that Ludlom was to have credit for the balance of the purchase price on an account due from him to the Saratoga Lumber and Supply Company, of which Jensen was a membef. Jensen also claimed that Clammer knew of this sale before he purchased the plows from Lud-lom.
On the other hand, the defendants below claimed that Clammer bought the plows for the investment company from Ludom on July 5, and denied any knowledge of. any sale to Jensen. On these questions there was a direct and positive conflict in the evidence. The district court passed upon this conflicting evidence and found for the plaintiff; and under the rule so often repeated, the appellate court will not dis--turb such findings where there was evidence upon which 327 such findings might reasonably .be based.
In order to find for the plaintiff below the court must have found’ that Lud-lom did sell the plows to Jensen on July 1, and that the $328.42 constituted a partial payment of the purchase money; and we think there was sufficient evidence to sustain those findings. Such being the case, the sale was not void by reason of the statute of frauds; and as that is the only question discussed in the briefs of plaintiffs in error, the judgment of the district court is affirmed. Affirmed. Scott, J., and Potter,- J., concur.