Crosby Hardwood Co. v. Trester

Newman, J. It is clear that the contract for the sale of the logs by Thompson to Darwin was void for want of compliance with the statute of frauds, and was binding on neither party. It was an agreement for the sale of property for the prioe of more than $50. It was not in writing. Dor was there any delivery or payment at the time. E. S. sec. 2308. Logs to be got out are merchandise which is within the statute. Hanson v. Roter, 64 Wis. 622. The agreement of sale, being void, could not be made valid by the mere payment or tender of even the entire purchase money, afterwards. For that purpose there must be a delivery and acceptance of the logs as well; or there must be a distinct renewal of, or assent to, the terms of the original [414] agreement, so as to make the payment apply on a present and not on a past agreement of sale. Bates v. Chesebro, 32 Wis. 594; S. C. 36 Wis. 636; Paine v. Fulton, 34 Wis. 83; Kerkhof v. Atlas Paper Co. 68 Wis. 674. Whether there was payment is controverted. But it is not claimed that there was ever any delivery to, or acceptance of these logs by, any person representing the plaintiff or through whom it claims to derive title, nor any later agreement of sale. On the contrary, the logs were delivered by Thompson to the defendant to be manufactured for her. So it is clear that Darwin never had any title m these logs which he could sell or transfer to Crosby. He could give Crosby no better title than he had. Ballard v. Burgett, 40 N. Y. 314. He was not intrusted by Thompson with the possession of the logs or with any indicia of ownership which could mislead a purchaser. Crosby had. a large contract with Darwin for logs to be put into Black river. These of Thompson’s were to be put in under that contract. They were only a small part of the logs to be put in under that contract. Crosby dealt with Darwin. He made payments to him on account of logs generally, under the contract. He trusted him to apply the money in payment for logs. He never gave him money designated to be applied to the payment for these particular logs. Thompson did nothing to deceive or mislead him. She had no reason to anticipate that Darwin would misappropriate funds intrusted to him by Crosby. And she was under no duty to see that Darwin fulfilled his engagements with Crosby. “Ho one is under any obligation to exercise care or diligence to prevent another’s being defrauded in a transaction to which he is not a party.” Kingman v. Graham, 51 Wis. 232, 248. Thompson is not estopped to deny the title of the plaintiff. Whether the logs were paid for, or whether Thompson, at any time, intended to waive the condition of prepay [415] ment, are immaterial questions. The logs were never delivered to or accepted by either Darwin or the plaintiff, and the title to them never passed from Thompson. By the Cowrt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.