Restad v. Engemoen

• Decision Date: 17 June 1896
• Citation: 67 N.W. 1146,65 Minn. 148
• Parties: RESTAD v ENGEMOEN.
• Court: Minnesota Supreme Court

65 Minn. 148

67 N.W. 1146

RESTADvENGEMOEN.

Supreme Court of Minnesota.

June 17, 1896.

(Syllabus by the Court.)

In determining whether a sale is executed or executory, the rule is applied that, where anything remains to be done to the chattels for the purpose of ascertaining the price, as by weighing at a certain time in the future and feeding in the meantime, these things shall (in the absence of circumstances sufficiently indicating a contrary intention) be held to be a condition precedent to the vesting of title in the purchaser, though the particular chattels are ascertained.

Appeal from district court, Otter Tail county; L. L. Baxter, Judge.

Action by Peter Restad against Halfdan Engemoen. From a judgment for plaintiff, defendant appeals. Reversed.

Peterson & Kolliner, for appellant.

J. T. McCulloch and C. C. Houpt, for respondent.

CANTY, J.

This action was brought to recover $38.41, the price of a cow and a steer which plaintiff alleges he sold to defendant. Plaintiff had a verdict, and from the judgment entered thereon defendant appeals. Plaintiff testified that about March 1, 1892, defendant came to his farm, looked at the cow and the steer, and agreed to give him 2 cents per pound for the cow and 2.35 cents per pound for the steer, paid him $1 on the cow and $1 on the steer, and asked him to keep them, and feed them corn and potatoes, until April 26th following, and then to deliver them to defendant at Pelican Rapids, a town some distance from the farm; that plaintiff did so keep, feed, and deliver them, but that defendant refused to receive them. Thereupon plaintiff weighed them, and thereby ascertained the amount of the purchase price. Defendant testified that he told plaintiff that he would take the cattle at the price specified if plaintiff would “feed them up to beef.” Said the witness: “I told him I could not handle cows at all unless they were fed up to beef. *** They were very poor. I could not take them because they were not fed up to beef.” Plaintiff testified that defendant merely told him to feed “them a little potatoes and corn, but don't give them too much any of the time,” and denies that he agreed to fatten them. We are of the opinion that the evidence does not sustain the verdict and judgment. In Martin v. Hurlbut, 9 Minn. 142 (Gil. 132), the following extract is quoted with approval from Joyce v. Adams, 8 N. Y. 291: “It is a general rule of law that, where a contract is made for the purchase of goods, and...