Terney v. Doten

Ross, J. The agreement testified to on the part of the plaintiff is within the statute of frauds, and therefore void. It was a contract for the sale of a certain lot of horses at a price exceeding two hundred dollars. The agreement was not in writing, nor was there any note or memorandum thereof made in writing, and consequently none such was subscribed by the parties to be charged, nor by any one for them. It is not pretended that any part of the purchase price was paid at the time of the agreement of sale, or at all. So that, unless there was such acceptance and receipt of a part of the horses as is contemplated by section 1739 of the Civil Code, it is clear that the agreement was. invalid. The section referred to reads:—

"No sale of personal property, or agreement to buy or sell it, for a price of two hundred dollars or more is valid unless,—

“1. The agreement, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged, or by his agent; or,

[401]. “2. The buyer accepts and receives part of the things sold, or when it consists of a thing in action, part of the evidences thereof, or some of them; or,

“3. The buyer, at the time of sale, pays part of the price.”

The agreement as testified to on the part of the plaintiff was in effect this: Defendants agreed to sell him, and he agreed to buy, one hundred unbroken horses of a certain description at the price of seventy-five dollars each out of defendants’ band of horses, then running at large on their stock range; said one hundred horses to be selected, paid for, and taken by plaintiff in this wise:—

Defendants were to gather up a number of the horses of the band from time to time, and place them in their corrals, from which plaintiff was to select not less than twenty of the description agreed on, and commence “rough breaking” them, having for that purpose the use of defendants’ harness, cart, etc., after which the number so selected and broken were to be turned into defendants’ pasture-field, and another selection made in like manner and for alike purpose; and so on until the whole number of one hundred agreed to be sold and bought as aforesaid should be gathered up, selected, and broken,— all of which was to be done within two months from the time of the agreement of sale. At the expiration of that time, the horses were to be paid for by plaintiff at the rate agreed on, and were then to be taken by him from defendants’ premises.