Crabtree v. Eufaula Cotton Seed Oil Co.

• Decision Date: 19 March 1912
• Docket Number: Case Number: 1699
• Citation: 32 Okla. 465,1912 OK 249,122 P. 664
• Parties: CRABTREE v. EUFAULA COTTON SEED OIL CO.
• Court: Oklahoma Supreme Court

1912 OK 249

122 P. 664

32 Okla. 465

CRABTREE v. EUFAULA COTTON SEED OIL CO.

Case Number: 1699

Supreme Court of Oklahoma

Decided: March 19, 1912

Syllabus

¶0 1. FRAUDS, STATUTE OF--Sales--Validity of Contract. A verbal contract for the sale of 50 tons of cotton seed meal at $ 24.50 per ton, and 360 tons of cotton seed hulls at $ 5.50 per ton, to be delivered in the future, where no part of the consideration is paid, and no part of the goods are delivered, is within the statute of frauds (Comp. Laws 1909, sec. 1089), is invalid, and cannot be enforced by either party; nor can a claim for damages be predicated on a breach thereof.

2. SAME--Pleading--Demurrer. Where it clearly appears on the face of the petition that the contract sued on, or for a breach of which damages are claimed, is within the statute of frauds (section 1089, Comp. Laws 1909), and nothing is alleged removing the statute bar, held, the defect may be taken advantage of by demurrer.

Error from District Court, McIntosh County; Preslie B. Cole, Judge.

Action by J. C. Crabtree against the Eufaula Cotton Seed Oil Company. Judgment for defendant, and plaintiff brings error. Affirmed.

C. H. Tully and J. Carter Cook, for plaintiff in error.

Collier, Turner & Turner, for defendant in error.

BREWER, C.

¶1 This is a suit for damages for the alleged breach of an oral contract of sale of 50 tons of cotton seed meal and 360 tons of cotton seed hulls. J. C. Crabtree, plaintiff in error, was plaintiff below, and Eufaula Cotton Oil Company, defendant in error, was defendant. They will hereafter be referred to as they were known in the trial court.

¶2 This suit was commenced on the 1st day of December, 1909, in the district court of McIntosh county. A demurrer to the amended petition was filed, and upon presentation was sustained by the court, from which order this appeal is prosecuted.

¶3 The petition in this case is lengthy, and is composed of numerous paragraphs, but we have read it with care, and, when boiled down, the material allegations present the following state of facts as the basis of the action: The plaintiff avers that on September 1, 1909, he entered into a verbal contract with the defendant for the purchase of 50 tons of cotton seed meal at $ 24.50 per ton and 360 tons of cotton seed hulls at $ 5.50 per ton; that it was agreed that the delivery of the same should commence on the 15th day of November thereafter, and that they were to be paid for on delivery; that thereafter, when the time for delivery came, the plaintiff demanded the goods, but that the defendant failed and refused to deliver any part of same; that plaintiff was ready, willing, able, and anxious to pay for the goods according to his contract. The plaintiff further alleges that, when the time for delivery arrived, the goods had advanced in value, the meal to $ 30 per ton and the hulls to $ 10 per ton, and that the reason defendant did not deliver them was because of such advance in price. The plaintiff alleges that because of the failure of defendant to perform its contract he has been damaged the difference between what he agreed to pay for the goods and the market price of the same at the date they should have been delivered and were not; the said damage being $ 1,885. The prayer of the petition is for said damages so suffered.

¶4 There are several other allegations, among them being an allegation of the purposes for which plaintiff purchased the goods; that he expected to feed them to cattle, and that in relying upon the contract he had borrowed a large sum of money and invested it in cattle, and that, because of the failure to deliver the goods, he could not keep his contract with other parties, and could not prepare the cattle for the market, but was compelled to rough them through the winter; and that he had at some other times made verbal contracts with defendant which had been performed, etc., but in our judgment none of these allegations are material, or lend any aid to the cause of action as stated above.

¶5 The petition in error presents fifteen specific assignments of error, and they have been treated in the brief under three heads, and, as we view the case, they all resolve themselves into the one question, i. e., did the petition state facts sufficient to state a cause of action when challenged by a general demurrer? The theory of the court in sustaining the demurrer was that the petition upon its face showed that the alleged contract was void, because in violation of the statute of frauds, which reads as follows:

"The following contracts are invalid, unless the same, or some note or memorandum thereof be in writing and subscribed by the party, to be charged, or by his agent; * * * any agreement for the sale of goods, * * * at a price not less than $ 50,00, unless the buyer accept or receive part of such goods and chattels, * * * or pay at

...