Suggett's Adm'r v. Cason's Adm'r
Decision Date | 31 January 1858 |
Citation | 26 Mo. 221 |
Parties | SUGGETT'S ADMINISTRATOR, Defendant in Error, v. CASON'S ADMINISTRATOR, Plaintiff in Error. |
Court | Missouri Supreme Court |
1. Where there is only an agreement to sell a slave and not a sale executed, an action for the possession can not be maintained; the remedy is an action for damages arising from the breach of the contract.
2. Agreements that may be performed within a year from the making thereof are not within the statute of frauds.
3. Where an agreement not in writing has been wholly performed on one side, the other party thereto can not interpose the defense of the statute of frauds.
Error to Callaway Circuit Court.
This was an action for the possession of a negro slave named Jim. The plaintiff, Jno. S. Suggett, alleged in his petition that in the month of January, 1846, he made a verbal contract with Larkin Cason, defendant's intestate, of the following effect: that he, plaintiff, should repair a certain log house belonging to Cason, and make certain additions thereto; that in consideration thereof Cason agreed to give and deliver to plaintiff a certain slave named Jim; that he, plaintiff, did in pursuance of the contract execute the repairs and make the additions required; that the work was done according to contract; that “said contract was completed some time about the first day of September, 1849, and that the said Cason thereupon accepted the house and every department as completed in accordance with the contract, and took full possession of the same;” that said Cason did not deliver said slave Jim to plaintiff, &c. The plaintiff prayed for judgment for the possession of the slave and for damages for his detention.
The court, at the instance of the plaintiff, instructed the jury as follows:
The following instructions, among others asked by the defendant, were refused:
The jury found for plaintiff.
J. F. Jones, for plaintiff in error.
I. The plaintiff could not recover the specific property sued for. The evidence shows clearly that the title to the slave had not vested in him. There was no sale in contemplation of law. The only remedy was by action sounding in damages. There was no delivery.
II. This was a suit for the possession of the slave. Being such, plaintiff was not entitled to recover damages; he could only recover the value of the services of the slave. (King v. Brown, 2 Hill, 485.) The court erred in refusing the instructions asked by defendant. (See Smith on Contracts, p. 67, 70; 3 Pick. 94; 3 Hill, 128; 2 Denio, 87; Story on Cont. § 787; Cunningham v. Ashbrook, 20 Mo. 556; Story on Sales, § 232-9.)
Hardin, for defendant in error.
I. The plaintiff can in this action recover the specific property and damages for the detention. There is a sufficient delivery where it clearly appears to be the intention of the parties that the property should be deemed to be delivered and the title to have passed, especially if the acts of the parties be inconsistent with any other view. (Story...
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Reed v. Cooke
...performed and because of possibility that it may be performed within one year. Matthews v. Wallace, 104 Mo.App. 98, 78 S.W. 296; Sugget v. Cason, 26 Mo. 221; Brest v. Ver Shoe Co., 97 Mo.App. 137, 70 S.W. 1081; Alexander v. Alexander, 52 S.W. 256; Nowak v. Berger, 34 S.W. 489; Foster v. McO......
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