Jones v. Pettigrew

• Court: South Dakota Supreme Court
• Writing for the Court: WHITING, P. J
• Citation: Jones v. Pettigrew, 127 N.W. 538, 25 S.D. 432 (S.D. 1910)
• Decision Date: 24 May 1910
• Parties: JOHN R. JONES, Plaintiff and appellant, v. R. F. PETTIGREW, Defendant and respondent.

25 S.D. 432, 127 N.W. 538 (1910)

JOHN R. JONES, Plaintiff and appellant v R. F. PETTIGREW,

Defendant and respondent

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Joseph W. Jones, Judge

Affirmed

Krause & Krause

Attorneys for appellant.

Muller & Conway

Attorneys for respondent.

Opinion filed May 24, 1910

WHITING, P. J.

This action was commenced in the justice court by service of a money demand summons followed by a complaint, alleging the delivery by plaintiff to defendant of 200 apple trees for which defendant promised to pay plaintiff the sum of $50, which he has since neglected to pay. The defendant, appearing in justice court, interposed a general denial. Upon trial in justice court the defendant cross-examined the plaintiff, but offered no evidence in his own behalf. The justice court entered judgment for the plaintiff, and defendant appealed to the circuit court, demanding therein a new trial on both issues of law and of fact. The evidence in the circuit court was limited to that given by plaintiff, who, in substance, testified that he was engaged in farming and raising nursery stock, having an extensive nursery in Minnehaha county (being the county in which this action was brought); that in the month of April the defendant had a conversation with him over the telephone in which defendant ordered 200 apple trees; that defendant asked him if he could send them right away, also asked the price, and was told that it was $25 per hundred; that defendant wanted the trees the next day, and plaintiff told him he could not possibly send them, as he had so many other orders ahead, and it would take some time to fill as large an order as 200 trees; that defendant asked that they be sent by express, and plaintiff advised that they would be too large and bulky; that finally it was agreed that the trees should be sent by freight, and they were so sent, consigned to defendant as per defendant's instructions. Plaintiff testified that to get the trees ready for shipment he had to dig and pack them and haul them to the depot; that they were then growing in his nursery; that he did dig 205 trees. The above contains all the evidence offered, and the same was received without objection, but immediately after the receipt of the above the following objection was interposed:

"Defendant now objects to the introduction of any further evidence in this case, and moves to strike out the evidence of the witness here, for the reason that it appears that the amount of this contract was in excess of $50, and no part of the agreement in writing."

The court reserved its ruling and the plaintiff rested his case. The defendant then renewed his motion to strike out the evidence for the reasons above stated, and asked the court to direct a verdict in favor of the defendant, for the reason that plaintiff had not shown a contract within the terms and provisions of the law, the contract appearing to be verbal and no acceptance of the property by the defendant shown and no part of the purchase price paid. This motion was sustained, and upon direction of court, a verdict was rendered in favor of the defendant. Judgment having entered thereon and a new trial having been denied, the plaintiff has appealed to this court from such judgment and order denying a new trial.

The assignments of error may well be condensed under the following contentions on the part of plaintiff, as stated in his brief:

"(1) That the contract was such as was not within the statute of frauds. (2) That, even if conceded that the contract was within the statute, the defendant must be held to have waived the effect thereof (a) by his failure to plead the statute in defense; (b) by his failure to object to the proof of the oral contract at the trial in the justice's court, though represented by his attorney who was present at and took active part in said trial; (c) by his failure to object to the evidence showing an oral contract and the evidence of the performance thereof by the plaintiff, upon the trial of the case in the circuit court."

In support of the first contention plaintiff insists that a sale of apple trees does not come under the statute of frauds of this state, but under an exception found in the laws of this state. The statute of frauds of South Dakota, as found in sections 1238 and 1309 of the Revised Civil Code, so far as same pertains to this case, provides that a sale or agreement for sale of personal property for a price of $50 or more is invalid unless the agreement or some note or memorandum thereof be in writing and subscribed by the party to be charged or by his agent, or the buyer accepts or receives part of the thing sold, or the buyer at the time of the sale pays part of the purchase price. Section 1310 of such Code, being the section upon which plaintiff relies, provides: "An agreement to manufacture a thing from materials furnished by the manufacturer or by another is not within the provisions of the last section." Plaintiff contends that, inasmuch as it was necessary for him to perform certain work in preparing these trees for delivery to defendant, the statute of frauds does not apply, and that the facts bring the case under said section 1310. Plaintiff has cited several authorities, but to our mind they are very far from being analogous to the case at bar, even conceding plaintiff's claim that work and labor had to be performed to prepare the trees for delivery. The evidence, however, wholly fails to show that there was any understanding on the part of the defendant that the trees to be purchased by him were not ready for delivery; and, without such evidence, it would most certainly be presumed that the stock of a nurseryman was in a condition for delivery at the season of year when such stock is customarily sold. But, even if the evidence had shown that, according to the understanding between the parties hereto, the trees had yet to be dug before delivery, yet such fact would not bring this case under said section 1310, such section being intended to cover cases where the main thing contracted for is labor and the material is the incident, not cases where labor is the mere incident to the property sold.

In considering the other questions raised by plaintiff, it is well first to note the difference between our statute and the English statute of frauds, which statute is still found in some of the states. Under the old English statute the contract was valid, the statute declaring it to be not enforceable. Thus the statute went merely to the remedy, prescribing the rules of evidence and declaring that without certain evidence the contract could not be enforced. Under our statute, however, the contract is invalid unless certain requisites for a valid contract exist. Pierce v. Clark, 71 Minn. 114, 73 N.W. 522; Brandeis v. Neustadtl, 13 Wis. 142. In this last case the court...