Easley v. Stewart

Anderson, J., delivered the opinion of the court. Appellant, Eugene Easley, probated a promissory note for three hundred twenty-five dollars, payable to himself against the estate of T. J. Stewart, deceased, which note was executed by said decedent. The allowance of said note was contested by the representatives of said estate, and the chancery court rendered a decree in favor of said estate disallowing the same, from which appellant prosecutes this appeal. The case, stated most strongly for the estate of said decedent, is as follows: Said decedent, J. T. Stewart, j.n his lifetime purchased from appellant twenty-four head of cattle, for which he agreed to pay appellant at a future date three hundred twenty-five dollars, and executed his note accordingly, in which note appellant reserved the title to said cattle until paid for. Stewart died without paying the note, or any part of it. Before his death he had received from appellant and had possession of the cattle. Said decedent died intestate, leaving surviving him a widow and several children, most of whom were minors. Some time after his death appellant had a conversation with the widow apd a brother of her’s, Mr. Causey, in which she and her brother proposed on behalf of Stewart’s estate that the said cattle trade be canceled by the cattle being returned to appellant and appellant surrendering said note for their purchase money. The cattle were located on the farm and near the home of said decedent. Appellant went to look at the cattle Avith said brother of the AvidoAV of said decedent, and, after seeing them, said that he would take them back and surrender the note. The cattle were pointed out, but were not segregated from other cattle belonging to said estate. The evidence on behalf of said estate showed, however, that it was understood and agreed that appellant would take the cattle back, and at a future date would surrender the note, the note not being in his possession at the time, and it was agreed further that for a time, which was not definitely fixed, the cattle should remain in pos [761] session of the widow of said decedent commingled with the cattle belonging to his estate. Appellant in his testimony denied any such agreement. Shortly after this alleged agreement appellant demanded payment of the note, and later probated it against the estate of said decedent. The value of the cattle was more than fifty dollars. The transaction being covered by the statute of frauds (section 4779, Code of 1906; section 3123, Hemingway’s .Code), the question is whether or not said statute was complied with in the making of the contract of rescission of sale of the cattle involved. The statute provides: “A contract for the sale of any personal property, goods, wares, or merchandise, for the price of fifty dollars or upward, shall not be allowed to be good and valid unless the buyer shall receive part of the personal property, goods, wares, and merchandise, or shall actually pay or secure the purchase money, or part thereof, or unless some note or memorandum, in writing, of the bargain be made and signed by the party to be charged by such contract, or his agent thereunto lawfully authorized.” It will be observed from the statement of the case above that the note for the purchase money of the cattle was not in fact surrendered by appellant, that he only promised to surrender it, nor were the cattle, or any part thereof, delivered to appellant, unless such delivery resulted from merely seeing them and the statement when they were tendered to him that he agreed to take them back and would take them away at a future date. It will be observed further that the entire contract with reference to the alleged resale rests in parole, and that there was no visible physical change whatsoever, either in regard to the note or the possession of the cattle. This question is discussed in 25 R. C. L. section 239, p. 622, and the authorities cited to support the text. It is there stated that, if the property sold is handed to the buyer and by the latter immediately handed back to the seller to hold for him until the price is paid,.this is not a sufficient delivery and ac [762] ceptance to take the transaction out of the statute of frauds, and that an agreement merely on the part of the seller to hold the property for the buyer, as his agent or bailee, to be called for when the buyer chooses, does not constitute a sufficient delivery and acceptance. The principle is illustrated there by the sale of a large quantity of sugar which remained in the seller’s warehouse and under his control; the agreement between- the parties being that the sugar should be kept in storage by the seller for the buyer. It was held 'that this was not a sufficient delivery and acceptance. The point is, some physical change must take place that is susceptible of being proven. If when the alleged agreement is completed the status of the property is exactly the same with reference to its physical possession as it was prior to the agreement, there is no delivery under the statute. As we understand, this is what the court held in Ladnier v. Ladnier, 90 Miss. 475, 43 So. 946. And this principle applies with equal force to a contract of resale, where the original purchaser has possession of the property. 27 C. J., section 253, p. 237. It is contended, however, on behalf of appellees that the statute has no application in this case because by the terms of the note in question appellant already had the title to the cattle, and that therefore no physical change in the possession of the property was necessary in order to transfer the title in appellant. But a complete answer to this contention is that the statute does not undertake to deal primarily with the transfer of the title to the property, but with the contract for its sale. The statute declares that no contract for the sale of personal property shall be good and valid unless a part of the purchase money is paid or a part of the property is delivered to the buyer, or a memorandum of the contract be in writing, signed, by the party sought to be charged. It is the contract itself that is outlawed by the statute. The question of title is incidental. The question is whether or not a valid contract has been made for the sale of the property. The statute applies to all contracts for the sale of personal property, [763] including executory contracts by the terms of which the title is not to pass until some time in the future. It has been held that the statute applies to a sale of one of several owners of property in common to another of his undivided interest. In such a case, of course, the title to the property is in all of the owners jointly. 27 C. J., section 261, p. 237. Reversed, and judgment here for appellant. Reversed.