Draper v. Wilson

SiebecKee, J. The evidence is ample to sustain the court in the conclusion negativing the claim of the defendant that he had purchased the hay in controversy from Eaestel, the former tenant of the farm, and hence this finding must stand. Erom this verity in the case it follows that the defendant was ■a stranger to the alleged agreement of sale of hay by the tenant to the plaintiff and that he was not a privy as to its own•ership. He had merely permitted the tenant to leave the hay on the premises for some time at the tenant’s request. Defendant, however, seeks to interpose the defense that the plaintiff’s contract for the purchase of the hay is void under the statute of frauds because no note or memorandum thereof was made in writing nor was a part of the purchase money •then paid. The tenant and the plaintiff both acquiesced in the contract before the court and volunteered performance. 'The question presented is whether the defendant, a stranger to this contract, can plead the defense of invalidity of the •contract of sale under the statute of frauds. We deem it established by reason and authority that the defendant has no ■such interest in the contract and its subject matter, under the [512] circumstances bere shown, as to authorize him to plead this-defense. Such a statutory defense is held to be personal and is not one available to strangers to such agreements. The rule has been well stated as follows: “Like usury, infancy,, and a variety of other defenses, it can only be relied upon by parties or privies.” Chicago D. Co. v. Kinzie, 49 Ill. 289; Rickards v. Cunningham, 10 Neb. 417, 6 N. W. 475; Cowan v. Adams, 10 Me. 374, 25 Am. Dec. 242; Christy v. Brien, 14 Pa. St. 248. This rule would seem to be necessary to-preserve to parties to such a contract the right to voluntarily waive the statute and perform the contract, as was declared they had the right to do by this court in Whiting v. Gould, 2 Wis. 552; Godden v. Pierson, 42 Ala. 370. The court properly awarded judgment for the plaintiff. By the Court. — Judgment affirmed.