Spear v. Bach

Cassoday, J. Every oral contract for the sale of any goods, chattels, or things in action for the price of $50 or more is void “unless the buyer accept and receive part of such goods, or the evidences, or some of them, of such things in action, or unless the buyer shall at the time pay some pvart of the purchase money.” Sec. 2308,’ B. S. The sale of the stock in question was not binding upon the defendant, unless it was made in one of the ways thus prescribed. We are clearly of the opinion that what took place between the plaintiff and the defendant on the cars, mentioned in the foregoing statement, did not constitute a receiving and acceptance of the stock within the meaning of. the statute quoted. There is no claim of the asking or [195] giving of any credit on such purchase. There is no claim that the defendant paid any part of the purchase price. It is very evident from the plaintiff’s own testimony that he did not deliver the stock to the defendant on the cars with the intention of then passing the title to the same without present payment. On the contrary, he states that he expected the defendant would pay him for it at the time; that after the defendant held the stock in his hands for a short time he handed it back to the plaintiff, because he was short of funds and did not want the plaintiff to trust him. for it; but that at the first banking town he, the plaintiff, might draw on him, the defendant, for $400 through Marshall & Ilsley’s bank, attaching the stock, which he, the plaintiff, agreed to do. In other words, according to the plaintiff’s testimony, the defendant orally agreed with the plaintiff on the cars to buy the stock at the price named and subsequently accept delivery and pay for the same at the place and in the manner indicated. This oral agreement was invalid under the statute quoted and the repeated decisions of this court. Hardell v. McClure, 1 Chand. 271, 2 Pin. 289; Nichols v. Mitchell, 30 Wis. 329; Pike v. Vaughn, 39 Wis. 499; Bacon v. Eccles, 43 Wis. 227; Hanson v. Roter, 64 Wis. 622; Kerkhof v. Atlas Paper Co. 68 Wis. 676; Shindler v. Houston, 1 N. Y. 261, 49 Am. Dec. 316. See other cases cited in the brief of counsel for the defendant. In Hardell v. McClure, 2 Pin. 289, the oral contract of sale was for wheat partly unthreshed, but it was nevertheless held to be within the statute cited, and therefore void. That case was distinguished from Meincke v. Falk, 55 Wis. 437, where the contract was for special labor and particular material in the manufacture of a specified article. In that case the authorities are reviewed, and the distinction between the two classes of cases pointed out. The learned trial judge charged the jury to the effect [196] that the contract of sale was valid under the statute quoted, whether they adopted the theory of the plaintiff or the defendant; that the contract of sale was not void for want of delivery. This is on the theory that such delivery was effected subsequently by the plaintiff sending the stock to the bank in pursuance of .the conversation on the cars. But there is no claim by any one that the title to the stock was to become vested in the defendant upon being received by the bank. On the contrary, the cashier testified to the effect that the stock certificates were received with a draft on the defendant for $400 attached, and that the certificates were to be delivered to the defendant only upon payment of the draft. The bank was in no sense the agent of the defendant in the transaction, but the agent of the plaintiff alone. Neither the plaintiff, nor the bank as his agent, could force upon the defendant the receipt and acceptance of the stock in the absence of any binding contract that he should so receive and accept the same. But the oral contract on the cars, being void for the reasons stated, cannot aid the plaintiff in establishing such delivery. In other words, the defendant, not having bound himself to receive, accept, and pay for the stock by what was said and done'on the cars, remained at perfect liberty to accept or reject the same after it was sent to the bank under the circumstances stated. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.