Smith v. Black.

• Decision Date: 17 November 1925
• Docket Number: (No. 5409)
• Court: West Virginia Supreme Court
• Parties: J. R. Smith v. Olie Black et al.

100 W.Va. 433

J. R. Smith

v.Olie Black et al.

(No. 5409)

Supreme Court of Appeals of West Virginia.

Submitted November 10, 1925.

Decided November 17, 1925.

1. Frauds, Statute of Date of Making Contract, and Not Date of its Execution or Commencement of its Performance, Controls.

For the purpose of the application of the statute of frauds, the date of the making of the contract, and not the date of its execution or the commencement of its performance, controls, (p. 437.)

(Frauds, Statute of, 27 C. J. § 8 7.)

2. Same IfBilateral Contract for Sale and Repurchase of Goods is Fully Performed by One Party Within One Year, Statute of Frauds is no Defense.

Where a bilateral contract for the sale and repurchase of goods or chattels is fully performed by one of the parties within a year, the other party cannot successfully interpose the statute of frauds, section 1, paragraph 7, chapter 98 of the Code, as a defense to an action by the other party against him for a breach of the contract on his part, though it was not to have been performed by him within one year from its date. (p. 438.)

(Frauds, Statute of, 2 7 C. J. § 436.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Error to Circuit Court, Pendleton County. Action by J. II. Smith against Olie Black and others. Judgment for defendants, and plaintiff brings error.

Reversed.

E. L. Judy, II. M. Calhoun, A. J. Welton, and England & Ritchie, for plaintiff in error.

B. II. Iliner and R. M. Iliner, for defendant in error.

Miller, Judge:

In an action of assumpsit plaintiff sought to recover of defendants the sum of $906.36, the balance he alleged was due him on 25, 295 pounds of cattle at ten (10) cents per pound, sold to defendants for delivery between September 25th and October 1, 1921, less the sum of $1,623.14, which he had realized on the sale of the cattle, on defendants' refusal to take and pay for them at the time and place stipulated in the contract.

Defendants pleaded non-assumpsit, on which issue was joined, on the issues thereby presented. On the trial, after plaintiff had adduced before the court and jury all his evidence, the court, on motion of defendants, struck out the evidence, and on the further motion of defendants, directed the jury to return a verdict for them, which was accordingly done; and to these rulings of the court and to its refusal to set aside the verdict of the jury and grant him a new trial, plaintiff excepted.

The defendants introduced no evidence, and in the court below and here predicated their defense solely on the application of the statute of frauds, paragraph 7, section 1, chapter 98 of the Code, providing that contracts not to be performed within a year must be in writing and signed by the party to be charged thereby or his agent.

The evidence of the plaintiff on the trial as to the time and terms of the contract in substance was: That some time about the middle of September, 1920, he met defendant Black and learned he had some cattle he would sell; that Black priced the cattle to him; that he told Black he would not buy them unless he would agree to take them back, which Black said lie would do; that some time later in the month, date not fixed, in company with one Judy he went to Black's place to look at the cattle, and there met Black, who with Judy went up the creek to look at some other cattle, while plaintiff' took a horse and went up on the mountain to look at Black's cattle, which he found, numbering 24 or 25 head, a few more than he wanted; that after looking at the cattle he went out on the mountain to the residence of one Morral, arriving late in the evening, where he found Black and made an agreement with him respecting the cattle. Stated in his own words on the witness stand, describing the agreement, he says: "I bought the cattle off of him there. I partly bought them, to take them up some time along about the first of October. Those that I did not want were to be thrown out. I told him there were a couple that I did not want to take. I bought the cattle and sold them back to him that evening. He told me Miley was going in with him on those cattle."

Following this evidence he further testified: "Q. What time did you take the cattle? A. Second of October. Q. When were they weighed? A. October second. Q. What price per pound did you pay? A. Nine cents. Q. You stated that Mr. Black agreed to purchase them, Mr. Miley to be in on the deal. That meant to be taken away the next year? A. Yes. Q. What time were they to be taken off the next year? A. My understanding was the 25th of September to the first of October. He claims earlier. That was my understanding of it, but he claimed when he talked with me it was earlier. That was my understanding. * * * Q. AVhat was the price you received? A. Ten cents." Evidently meaning the price he was to receive.

On cross examination plaintiff testified in response to questions by defendants' counsel, referring to the date of his purchase of the cattle in September, 1920. "Q. That is the time you claim you bought the cattle from Black, and Black rebought them from you? A. Yes, that is the time he said he, Miley, was going in with him. I sold them back to them with that understanding. Q. At what time did you agree the cattle should go away? A. That I was to take them in the fall. 1 don't know exactly what day. I took them on the second. I guess I took them about the time I said I would. Q. Your declaration says they were to go away between the 25th of September and the first of October? A. That was when they were sold. When they were sold they were to go away at that time. Q. When you sold them to whom? A. To Black and Miley."

When on redirect examination with reference to what was done on October second, plaintiff testified: "Q. Mr. Smith, I believe you stated that it was on the second day of October, 1920, that the cattle were weighed and you paid for them? A. Yes, 1920. Q. State what conversation, if any, you had with Black that day relative to the cattle? A. We weighed them that morning and I paid him for them. After we separated them I took out the ones I wanted, he helped me dowm off the mountain with them. We talked about the sale of them. He said, 'I want you to keep this to yourself. I don't want you to tell it where my father and mother will get it. They don't want me to be paying this kind of prices or buying ahead.' "

The plaintiff proved by himself and a number of other witnesses that Black admitted his agreement with plaintiff to purchase the cattle sold him, and that to two or three witnesses he said he did not intend to take them on account of the drop in the market price.

In answer to the defense of the statute of frauds plaintiff's counsel rely on three propositions:

First: That the contract in question does not come within the terms of the statute of frauds, because the date of the agreement to repurchase should be as of the date of the weighing and separation of the cattle on October 2, 1920.

Second: That assuming a complete contract to repurchase the cattle when the parties first met on or about the middle of September, 1920, nevertheless, the date of the last reiteration or recognition of the contract by the party to be charged, on October 2, 1920, should be considered as determining the question of the application of the statute of frauds.

Third: That assuming that the contract should properly date from the middle of September, 1920, the facts disclosed by the evidence did not bring it h the application of the seventh clause of the statute of s, for the reason that it was wholly performed by plain the one side.

Numerous decisions of this and courts are cited and relied on by counsel in support of f these propositions, which are vigorously combatted counsel for defendants, relying on some of the same authorities cited by counsel for plaintiff and others cited by them.

The pivotal question is, when, for the purposes of the application of the statute of frauds, did the contract become complete and binding on the part of defendant? The question is not when under the contract did the title to the cattle pass from defendant to plaintiff and back from plaintiff to defendant. The answer to these questions, and whether the contract is executed or remains executory, our decisions say, always depends on the intention of the parties, to be determined from the terms of the contract, the situation of the...