Swafford v. Spratt

• Decision Date: 07 April 1902
• Parties: GEO. W. SWAFFORD, Respondent, v. WILLIAM E. SPRATT, Appellant
• Court: Kansas Court of Appeals

67 S.W. 701

93 Mo.App. 631

GEO. W. SWAFFORD, Respondent, v. WILLIAM E. SPRATT, Appellant

Court of Appeals of Missouri, Kansas City

April 7, 1902

Appeal from Buchanan Circuit Court.--Hon. W. K. James, Judge.

REVERSED AND REMANDED, nisi.

J. F Woodson and C. F. Strop for appellant.

(1) The demurrer to the evidence should have been given, first because there was no delivery; second, because there was no acceptance. Cunningham v. Ashbrook, 20 Mo. 553; Emmel v. Hayes, 102 Mo. 186; Wainscott v Kellogg, 84 Mo.App. 621; Vincent v. Veiths, 60 Mo.App. 9. (2) The contract, not having been in writing, was void, because of the statute of frauds. Growing crops are within the above rule. State v. Durant, 69 Mo.App 390; Palmer v. Elsberry, 79 Mo.App. 570; Wainscott v. Kellogg, 84 Mo.App. 621. (3) The first instruction given for plaintiff is erroneous because it undertakes to instruct upon the whole case and entirely ignores the defenses raised. Instructions which cover the whole case and ignore the defense or theory of the defense are reversible error. Flynn v. Union Bridge Co., 42 Mo.App. 529; Voegeli v. Pickle Co., 49 Mo.App. 643; Hohstadt v. Daggs, 50 Mo.App. 240; Evers & Hunt v. Shumaker, 57 Mo.App. 454; Carder v. Primm, 60 Mo.App. 423; Walker v. Ins. Co., 62 Mo.App. 209; Linn v. Bridge Co., 78 Mo.App. 111 (l. c. 118); Westheimer v. Giller, 84 Mo.App. 126; Link v. Westerman, 80 Mo.App. 592. (4) The fact that the court gave, for defendant, instructions covering the defenses does not cure the error in plaintiff's instruction No. 1. Flynn v. Bridge Co., supra; Voegeli v. Pickle Co., supra; Carter v. Primm, supra; Linn v. Massillon, supra; Hohstadt v. Daggs, supra. (5) Plaintiff knew or ought to have known that defendant was acting as agent of the Duncan heirs. It is sufficient if the plaintiff had knowledge of such facts as would put him upon inquiry. Rhea v. Mfg. Co., 81 Mo.App. 400; Huston v. Tyler, 140 Mo. 252.

Kendall B. Randolph for respondent.

(1) The verdict is unquestionably for the right party. Fulkerson v. Long, 63 Mo.App. 268. (2) The instructions taken as a whole fairly present the issue and are in fact more favorable to the appellant than is justified by the law. Spillane v. Railroad, 111 Mo. 555; Karle v. Railroad, 55 Mo. 476; Meyer v. Railroad, 59 Mo. 223; Reardon v. Railroad, 114 Mo. 384; McGrew v. Railroad, 109 Mo. 582; Minter v. Hdw. Co., 50 Mo.App. 177. (3) The appellant's learned counsel seem to think that because appellant had been agent for the farm, that respondent was bound to treat him as having no capacity to purchase the products of the farm. The statement of that proposition is its own refutation. (4) Annual crops are personal property and subjects of sale. Holt v. Holt, 57 Mo.App. 272; Hosli v. Yokel, 57 Mo.App. 622; Garth v. Caldwell, 72 Mo. 622.

OPINION

SMITH, P. J.

This is an action which was begun before a justice of the peace, on an account which contained the following items:

Plowing 11 acres of land at $ 1.00 per acre.

$ 11.00

Selling growing wheat, 32 1-5 acres by

plaintiff to defendant at $ 6.00 per acre

193.20

For sowing clover, about 20 acres

20.00

In all the sum of

$ 224.20

The cause was removed by appeal to the circuit court where the plaintiff had judgment and defendant appealed.

The evidence tends to prove about this state of facts, viz.: That the plaintiff had for several years rented of defendant a certain farm know as the Duncan farm, for which the latter was agent, at an annual rental of six hundred dollars; that the plaintiff, under an annual lease, occupied and cultivated said farm for the cropping year 1900 and supposed he would be able to rent it for the next succeeding crop year, and under that supposition, and with defendant's permission, plowed up certain parts of it, sowing such parts in wheat and clover--and besides this, he plowed up about eleven acres more that he did not sow at all. Later on, and before the expiration of the plaintiff's term, the defendant went to plaintiff and offered to buy the said growing crops. The plaintiff, after some reflection, agreed to accept the defendant's offer, and thereupon a parol agreement was entered into whereby the former sold and the latter purchased said crops, the price to be the valuation fixed by two appraisers to be selected by them. It appears that such appraisers were selected by them and that the appraisement of the value of the said crops was made and evidenced by a written certificate signed by them.

A few days after the plaintiff's term had expired, and on March 15, 1901, the defendant wrote the plaintiff that he had rented the Duncan farm to Cartmell and Whitaker, whom he had authorized to take possession, and that as soon as it was agreed as to the number of acres of wheat and broken ground the money would be paid in accordance with the appraisers' estimate; said letter was signed "W. E. Spratt, Agent." On the next day, the sixth, the plaintiff wrote Tyler & Spratt, the latter being the defendant, that the "price on the clover is yet to be settled before I release the ground."

The defendant testified in effect that he entered into the contract but only as agent for the owners of the Duncan farm. It appears that Cartmell and Whitaker took possession of the farm under the direction of the defendant and harvested the said crop of wheat. The plaintiff paid the six hundred dollars rent for the farm before he surrendered it to Cartmell and Whitaker, but he was never paid anything for the said wheat and plowing by defendant or any one else. There was some evidence as to the reasonable value of the crops so sold, which we shall hereinafter have occasion to further notice.

The defendant interposed a demurrer to the plaintiff's evidence in the court below which was overruled; and this action of the court is assigned by defendant as the principal ground for a reversal of the judgment. Annual crops raised by yearly labor and cultivation are fructus industriales and are to be regarded as personal chattels, independent and distinct from the land capable of a sale without regard to whether growing or matured. Glass v. Blazer, 91 Mo.App. 564; Smock v. Smock, 37 Mo.App. 56; Holt v. Holt, 57 Mo.App. 272; Garth v. Caldwell, 72 Mo. 622. It is clear from the adjudications just cited that a growing crop of wheat is a proper subject of sale.

As has been stated, it is practically conceded that the plaintiff and defendant entered into a contract for the sale of the crop, and the question is, whether such contract, it being verbal is within the prohibition of the statute of frauds (sec. 3419, Revised Statutes 1899). The statute does not prohibit verbal contracts. On the contrary, it presupposes that the terms of the contract rests in parol proof and only requires, in addition to the proof of such contract, evidence of a delivery or part payment under it; it merely renders it necessary for a party claiming under it to show an additional fact to make it valid. The terms of the contract are in the first instance agreed upon and would be binding but for a difficulty which the subsequent acceptance removes and thus establishes the contract ab initio. The acceptance is all that gives the parties any rights and it does so by drawing to itself the original contract which then becomes binding in law. Brown on the Statute of Frauds, secs. 337, 338, 339; Cunningham v. Ashbrook, 20 Mo. 553; Emmel v. Hayes, 102 Mo. 186, 14 S.W. 209; Wainscott v. Kellog, 84 Mo.App. 621. To constitute the receipt required by the statute, there must be shown a transfer of the possession of the goods by and from the seller to the buyer, either actually by manual delivery, symbolically by some substituted delivery, or constructively by a change in the nature of the seller's subsequent holding.

A constructive delivery is when, without actual transfer of the goods or their symbol, the conduct of the parties is such as to be inconsistent with any other supposition than that there has been a change in the nature of the holding; and whether such change has taken place is a question for the jury. Browne on Statute of Frauds, secs. 318a, 319. And the question of whether or not there has been an acceptance is likewise a question for the determination of the jury, and circumstances of the slightest probative force may be submitted to it for that purpose. Browne on Stat. Frauds, secs. 318a, 319, 321.

The pertinent inquiry now arises, whether or not, in view of the principles to which we have just adverted, there was a delivery and acceptance of the crop. The plaintiff testified that he turned over the Duncan farm, with the crop growing thereon, to the defendant. The latter wrote to the former that he had authorized Cartmell and Whitaker to take possession of the farm and that as "soon as it was agreed as to the number of acres of wheat and broken ground the money...