Houghtaling v. Ball

• Decision Date: 31 October 1853
• Citation: 19 Mo. 84
• Court: Missouri Supreme Court
• Parties: HOUGHTALING, Plaintiff in Error, v. BALL & CHAPIN, Defendants in Error.

19 Mo. 84

HOUGHTALING, Plaintiff in Error,

v.BALL & CHAPIN, Defendants in Error.

Supreme Court of Missouri.

October Term, 1853.

1. It is error to instruct that a plaintiff cannot recover, if he offers any evidence whatever tending to establish his cause of action.

2. The fact that wheat contracted to be sold and delivered in Illinois is to be paid for on its arrival in Missouri, will not subject the contract to the operation of our statute of frauds.

3. If a party in our courts relies upon an Illinois statute of frauds, the burden is upon him of showing the existence of such a statute.

4. Whether there has been a delivery or not, so as to take a case out of the statute of frauds, is a question of fact to be passed upon by a jury under the direction of the court.

Error to St. Louis Circuit Court.

J. A. Kasson, for plaintiff in error.

I. There was evidence of a delivery and acceptance which should have gone to the jury Dodsley v. Varley, 12 Adolph. & Ellis, 634. Elmore v. Stone, 1 Taunt. 458. Story on Sales, § 277. Story on Contracts, 513. 2 Kent's Comm. 499.

II. But if there was no delivery, the contract, having been made in Illinois, was not subject to the operation of our statute of frauds. The lex loci contractus controls. Story's Con. of Laws, § 242 ( a,) 261, 262, 285. If the defendant claims the protection of an Illinois statute, he must show its existence.

Knox & Kellogg, for defendants in error.

The contract established by the plaintiff was manifestly void, as being within the statute of frauds. R. C. ch. 68, sec. 6. There never was a delivery of the wheat to the defendants. As to what constitutes a delivery, see Story on Con. 252, sec. 13. Chitty on Con. 7 Am. ed. 391. Nor is it material in this case whether the statute of frauds has ever been adopted in the state of Illinois, where this contract was made. See .Law Magazine, vol. 40. No. 99, for May, 1853, p. 80. Jerome v. Brown, 22 vol. Law Journal, N. S. C. B. p. 1. Story on Conflict of Laws, sec. 262, p. 391. 10 Bingham, 376.

SCOTT, Judge, delivered the opinion of the court.

The plaintiff's petition stated that he sold to the defendants two thousand bushels of wheat at the price of one dollar and five cents per bushel, to be paid for upon the arrival of the wheat at St. Louis, to the agents of the plaintiff; that the wheat was sold to the defendants and delivered to their agent at Chicago, in the state of Illinois, who was to ship the same to St Louis; that the wheat was shipped to St. Louis, and that the defendants refused to receive it and pay for it. The answer of the defendants denied all the material facts set forth in the petition. After the plaintiff had offered some testimony conducing to establish his cause of action, the court instructed the jury that there was no evidence that would warrant the jury in finding a verdict for the plaintiff, upon which the plaintiff submitted to a nonsuit.

1. As there was evidence in support of the plaintiff's action, the instruction should not have been given. The jurors were the judges of the weight of evidence. If there was a question of law upon the testimony in the cause, the facts should have...