Marshall v. Ferguson

California Supreme Court Jul 1, 1863Published

Before: Crocker

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Holding. The court held that sales of growing crops are not interests in real estate under the Statute of Frauds, that the defendant's resale of the crops constituted sufficient delivery, and that no demand for payment was required after the defendant failed to deliver grain by the contractually specified date.

Issues

Whether the sale of growing crops constitutes an interest in real estate requiring a written contract under the Statute of Frauds.
Whether the defendant's resale of the crops satisfied the delivery requirements of the Statute of Frauds.
Whether a demand for grain was necessary when the defendant failed to deliver by the specified date.
Whether the court may reverse a judgment for lack of findings when no exception was taken in the court below.

Disposition. affirmed

Quotations verified verbatim against the opinion

“sales of growing crops of that character do not come within the provision of the Statute of Frauds relating to sales of an interest in real estate, and therefore such sales, though not in writing, are valid.”

“The fact that defendant sold the crops to other parties was a sufficient delivery within the statute.”

“It was the duty of the defendant to deliver the grain, on or before the day named, to the plaintiff, and his failure to do so made him hable to pay the sum named in money.”

Synopsis

A sale of growing crops, the product of periodical planting and cultivation, does -?1 not come within the provisions of the Statute of Ifrauds, relating to sales of an interest in real estate, and therefore, though not in writing, is valid.

Where A purchases personal property worth more than two hundred dollars of B, but B does not deliver him possession of the same, and A then sells the goods to C, a third party, and receives his pay for the same, the sale by A to C is a sufficient delivery by B, and A cannot avoid the payment of the purchase money for want of delivery, or a note or memorandum in writing.

An agreement to pay a fixed sum in grain, at the market price on a day specified, if not fulfilled by the delivery of the grain at the time fixed, becomes a debt payable in money.

Where such an agreement exists, no demand of the grain is necessary, but a failure to deliver, makes the sum fixed, a money debt.

When the case made by plaintiff’s proof differs from the averments of the complaint, and defendant makes no objection to the introduction of the evidence on this ground, the Supreme Court will not reverse the judgment on account of the variance.

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring.

This is an action to recover six hundred and fifty dollars, for barley and wheat alleged in the complaint to have been sold by the plaintiff to the defendant. The case was tried by the Court, and after the plaintiff had closed his evidence the defendant moved for a nonsuit, which was refused. The Court, after hearing all the evidence, ordered judgment to be entered for the plaintiff, from which defendant appeals.

The first error assigned is that the Court erred in refusing the nonsuit. The evidence showed that the sale to the defendant was of growing crops of barley and wheat, and not of grain of those kinds, as alleged in the complaint; that these crops were growing on lands in the possession of various persons, and that after his purchase the defendant had resold the same to the parties in possession of the land, and had received his pay therefor, from all except one of them. It further appeared that the defendant’s agreement was to pay the six hundred and fifty dollars in grain at the market price, on the first day of October, 1862, but he had failed to deliver the grain at that date.

The grounds of the motion for the nonsuit were that the sale of growing crops was of an interest in land, and therefore it must be in writing, under the Statute of Frauds; that as a sale of goods and chattels it was void, being for a sum exceeding two hundred dollars, and not in writing, and no delivery having been made; that the plaintiff had failed to prove any title to the property, and that there was no proof that the grain the defendant had agreed to pay for had ever been demanded of him.

[69]The crops contracted for in this case are the product of periodical planting and cultivation, and the law8 appears to he well settled, both in the English and American Courts, that sales of growing crops of that character do not come within the provision of the Statute of Frauds relating to sales of an interest in real estate, and therefore such sales, though not in writing, are valid. (Browne on Stat. of Frauds, Secs. 250-258; Green v. Armstrong, 1 Denio, 550; Smith v. Bryan, 5 Maryland, 141; Safford v. Annis, 7 Maine, 168 ; Bostwick v. Leach, 3 Day, 476.) The objection that the sale was of an interest in real estate, and must be in writing, is therefore untenable.

The next point is, that as a sale of goods and chattels it was void for want of delivery and a written memorandum of the sale. The fact that defendant sold the crops to other parties was a sufficient delivery within the statute. (Browne on Stat. of Frauds, Sec. 322 ; Chaplin v. Rogers, 1 East. 192.)

Marshall v. Ferguson

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