Powder River Live-Stock Co. v. Lamb

• Decision Date: 21 November 1893
• Parties: POWDER RIVER LIVE-STOCK CO. v. LAMB.
• Court: Nebraska Supreme Court

38 Neb. 339

56 N.W. 1019

POWDER RIVER LIVE-STOCK CO.

v.LAMB.

Supreme Court of Nebraska.

Nov. 21, 1893.

Syllabus by the Court.

1. A verbal contract, to be void under the first clause of section 8 of our statute of frauds, must be one that, by its terms, is not to be performed within one year from the making thereof. The statute does not refer to such contracts as may possibly or probably not be performed within that time.

2. An oral agreement entered into in October, 1886, for the sale and delivery by plaintiff to defendant of a quantity of corn, of more than $50 in value, by the terms of which the seller was to receive the market price paid for corn in the county on any day between the time of delivery and May, 1888, is not within the eighth section of our statute of frauds, since performance within one year is possible.

3. Under section 9, c. 32, Comp. St., an oral contract for the sale and delivery of personal property of over $50 in value, no part of which has been accepted or received by the buyer, is invalid, where no part of the purchase money was paid at the time the contract was entered into, and where no note or memorandum of the contract was made in writing, and subscribed by the party to be charged thereby.

4. A delivery alone by the vendor is not sufficient to take the contract out of the statute, but there must also be a receipt and acceptance of the thing sold by the vendee, to have that effect.

5. In an action upon a contract within the statute of frauds, the petition must state facts taking the contract out of the statute, or the pleading will be demurrable.

6. Under a general denial of the allegations in a petition upon a parol agreement for the sale and delivery of personal property, void under the statute, the defendant may avail himself of the defense that such agreement is invalid under the statute of frauds.

7. The general agent and manager of a corporation carrying on the business of raising and feeding of cattle is presumably empowered to purchase feed for the stock belonging to the corporation.

8. A party cannot recover upon a quantum meruit where he pleads and relies on the trial solely upon a special contract.

9. This court will not reverse a judgment for the giving of an erroneous instruction, when it appears that the party complaining was not prejudiced thereby.

10. It is reversible error to refuse an instruction containing a correct proposition of law applicable to the issues in the case, the principles of which have not been covered by the charge of the court.

Error to district court, Stanton county; Powers, Judge.

Action by Charles L. Lamb against the Powder River Live-Stock Company. Plaintiff had judgment, and a new trial was denied. Defendant brings error. Reversed.C. C. McNish and Allen, Robinson & Reed, for plaintiff in error.

W. W. Young and John A. Ehrhardt for defendant in error, cite in support of the proposition that, to be available as a defense, the statute of frauds must be specially pleaded, Lawrence v. Chase, 54 Me. 196;Graffam v. Pierce, 9 N. E. 819, 143 Mass. 386;Brigham v. Carlisle, 78 Ala. 243;Martin v. Blanchett, 77 Ala. 288;Guynn v. McCauley, 32 Ark. 97;Wynn v. Garland, 19 Ark. 38.

NORVAL, J.

This was an action commenced by Charles L. Lamb to recover of plaintiff in error $1,849.15, and interest thereon, as a balance due for a quantity of corn alleged to have been sold and delivered by plaintiff to the defendant. The amended petition upon which the case was tried alleges: “(1) That said defendant is a corporation duly organized and existing under the general laws of the state of Colorado, and doing business in Stanton county, Neb. (2) That some time in the month of October, 1886, the precise date whereof the plaintiff is unable to more specifically state, the plaintiff and defendant entered into a verbal contract, by the terms of which the plaintiff sold to said defendant, above named, all the corn that he then had on hand, including the crop of corn then standing in the fields of the plaintiff; and, in consideration of the sale and delivery of said corn to the defendant, the said defendant agreed to pay the plaintiff the market price per bushel paid for corn in the said county of Stanton, in the state of Nebraska, on any day, to be selected by the plaintiff, between the time of delivery of said corn and the month of May, 1888, and on the day so selected by the plaintiff the amount then due the plaintiff should at once become due and payable. (3) That in pursuance of said contract the plaintiff delivered to the defendant, in the month of November, 1886, 143 bushels and 35 pounds of ear corn, and from the 21st day of December, 1886, to the 5th day of April, 1887, 782 bushels and 30 pounds of ear corn, and on the 30th day of December, 1886, 1,259 bushels of shelled corn, and in the month of January, 1887, 5,090 bushels of shelled corn and 25 pounds, and that the total number of bushels sold and delivered amounted, in the aggregate, to 7,275 bushels; and the plaintiff states that he is unable to more fully state the time and the amount of the delivery of said corn than in this paragraph stated. (4) On the 1st day of February, 1888, the plaintiff, in order to fix and establish the price to be paid by the defendant for the corn delivered as aforesaid, served notice on the defendant that he had selected the market price per bushel paid for corn in Stanton county, Neb., on that date, to wit, the 1st day of February, 1888. (5) That the market price paid for corn on the said 1st day of February, 1888, in Stanton county, Neb., was thirty-five cents per bushel. (6) That on the 4th day of January, 1887, the defendant advanced to the plaintiff on said corn the sum of two hundred (200) dollars, and on the 12th day of January, 1887, the further sum of four hundred and fifty (450) dollars, for which money so advanced the plaintiff afterwards agreed to pay the defendant interest thereon until the date of the selection of the market price per bushel to be paid for said corn. (7) That there is due from the defendant to the plaintiff for the said corn so delivered under the terms of said contract the sum of two thousand five hundred and forty-six and twenty-five one-hundredths (2,546.25) dollars, no part of which has been paid, except the said sum of $650, which, with the interest thereon, as agreed between plaintiff and defendant, amounts to the sum of $697.10. (8) That, after allowing to the defendants all just credits, there is still due and unpaid from the defendant to the plaintiff the sum of one thousand and eight hundred forty-nine and fifteen one-hundredths (1,849.15) dollars, together with the interest thereon at the rate of seven per cent. from the said 1st day of February, 1888.”

The defendant interposed a general demurrer to the amended petition, which was overruled by the court, and an exception was taken to the decision. The defendant then filed an answer alleging: “(1) That on or about the 24th day of December, 1886, L. R. Crosby, as the general manager of the feeding department of said defendant, made an oral agreement with said plaintiff, whereby the said plaintiff was to sell and deliver at the ranch of defendants in Stanton county, Nebraska, all the corn and oats that he then owned near Pilger, and two car loads of corn to be shipped from Stanton, and said defendant agreed to pay said plaintiff for said corn and oats the average market price between the Stanton and Pilger market on the day that said plaintiff selected and called for his money, between about the 24th day of December, 1886, and the 1st day of May, 1887, and that said plaintiff was to reduce said contract to writing, in duplicate, and sign them, and forward them to said L. R. Crosby for the same to be signed by said defendant, and one to be returned to said plaintiff. (2) That said plaintiff failed and neglected to reduce said contract to writing as agreed, and there is no note or memorandum of said agreement as required by law. (3) That in accordance with said oral agreement made on or about the 24th day of December, 1886, with said L. R. Crosby, for said defendant, the said plaintiff delivered at the ranch of said defendant in Stanton county, Nebraska, at various dates, a total of nine hundred and twenty-five (925) bushels and sixty-five (65) pounds of ear corn, and six thousand three hundred and forty-nine (6,349) bushels and thirty-five (35) pounds of shelled corn; and nineteen hundred and ninety-four (1,994) bushels and twenty-seven (27) pounds of oats. (4) That on the 25th day of April, 1887, in accordance with the contract made on or about the 24th day of December, 1886, the said plaintiff had a settlement with said defendant as to the oats, and on said date defendant paid said plaintiff for said oats the sum of $359.10. (5) That on the 4th day of January, 1887, the said defendant loaned to said plaintiff the sum of $200, and on the 12th day of January, 1887, said defendant loaned said plaintiff the further sum of $450; and said plaintiff agreed to pay said defendant interest on said money, and that the same was to be settled and adjusted, and deducted from amount that defendant might owe the plaintiff. (6) The defendant, in further answer to the petition of the plaintiff, admits the allegation contained in paragraph one of said petition; but, as to all other paragraphs in said petition, it denies each and every allegation therein contained.”

For reply, the plaintiff admits that he delivered the quantity of oats and corn stated in the answer; denies that the same were delivered under the contract set up by the defendant in its answer; alleges that the oats and corn were sold and delivered under separate and distinct contracts; denies each and every other allegation set forth in the answer.

The action was tried in the court below to a jury, who returned a verdict in favor of the plaintiff for $2,142.38. The plaintiff filed a remittitur of $1.25, and the court overrul...