Stem v. Crawford

Boyd, C. J., delivered the opinion of the Court. This is an appeal from a judgment in favor of the defendants (appellees) in an action of trover brought by the plaintiff (appellant) to recover' the value of an undivided interest in a crop of growing wheat on fifty-one acres of land in Carroll County. There was a demurrer to each of the three counts of the declaration, which the Court overruled as to the first and second and sustained as to the third. As the appellant under the first and second counts obtained the benefit of everything he could have asked under the third, the ruling as to the latter is immaterial and need not be discussed.

There are three exceptions to the rulings on the admissibility of evidence, and one on the action of the Court on the prayers.. ⁵⁸¹ C. Welby Streaker rented a farm from the defendant Crawford from the 1st of April, 1916, until March 31st, 1917. He was to furnish half of the seed and fertilizer and get half of the crop, but upon the expiration of bis tenancy he was not to cut the growing crop then on the farm which was to he cut by the landlord, or the succeeding tenant, hauled to market and sold, and out of the proceeds of sale Streaker was to receive one-fourth, or he could have taken one-fourth of the wheat. There was a crop of wheat on the farm when he took possession, which he cut and delivered to the railroad for what is spoken of as “the fourth bushel.” He sewed fifty-one acres and left at the end of the year, in March, 1917. John C. Miller, one of the defendants, succeeded him as tenant, his tenancy beginning April 1, 1917.

He cut the .wheat which Streaker sowed, had it threshed, hauled to market, sold it, collected the money and turned over three-fourths of the proceeds to Crawford and kept one-fourth. The controversy in this case has arisen by reason of tbe claim of Crawford that in January, 1917, Streaker sold to him all of his interest in the growing crop of wheat which he had sowed on the fifty-one acres, and Stem (the appellant) contends that Streaker sold it to him on March 1, 1917, for which he paid him $200 and took his receipt. In this State growing crops, if fruatus industriales, such as one of wheat, were regarded as chattels and hence could be sold without complying with the fourth section of the Statute of Frauds, and a sale of a crop not yet threshed, shucked or gathered was not within the seventeenth section of that statute, because as work and labor were necessary to prepare it for delivery, it was not a sale of goods, wares and merchandise within the meaning of that section. Willard v. Higdon, 123 Md. 447, 451 , where many oases are cited.

That rule has been somewhat changed by the Uniform Sales Act, which was adopted in this State in 1910, and now embraces Sections 22 to 99, inclusive, of Article 83 of the ⁵⁸² Code. By section 97 it is provided that “ ‘Goods/ include all chattels personal other than things in action or money. The term includes implements, industrial growing crops and things attached to or forming a part of the land which are agreed to be severed before sale or under the contract of sale.” Section 24 provides that “Subject to the provisions of this sub-title and of any statute in that behalf, a contract to sell or a sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly by words of mouth, or may be inferred from the conduct of the parties.” Section 25 is as follows: “A contract to sell or a sale of any goods or choses in action of the value of fifty dollars or upward shall not be enforceable by action, unless the buyer shall accept part of the goods or choses in action so contracted to be sold, or sold and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf. “(2) The provisions of this section apply to every such contract or sale, notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of such contract or sale be actually made, procured or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery; but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller’s business, the provisions of this section shall not apply.” Streaker and Stem testified that the latter paid the former $200 for the wheat on or about March 1, 1917, and the receipt for the same is set out in the record. That transaction was undoubtedly a compliance with the statute.

At the conclusion of the testimony in chief of Orawford, which had been admitted subject to exception, the plaintiff made a ⁵⁸³ motion to strike out his evidence as to the purchase of the wheat because, “1. It does not meet the requirements of the Uniform Sales Act. “2. Because the undisputed evidence shows that the vendor remained in possession of it, and no hill of sale was given and recorded. “3. And for other apparent reasons.” The Court overruled the motion, and that ruling constitutes the first exception.

Crawford was the first witness called by the defendants, and conceding that that evidence alone would be insufficient to- support his contention that he had purchased the wheat, the Court could not assume that there would not be other evidence. His testimony tended to show a compliance with paragraph 3 of section 25 of Article 83, which provides that: “There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods.” As it was necessary to prove an acceptance as well as a receipt, his testimony, reflecting upon that, was relevant and admissible, and hence the Court could not have stricken that part of it out under that motion, which was general and did not refer to any particular part of his evidence. The second exception was taken to the refusal of the Court to permit the plaintiff to offer in evidence a check which Crawford had given Stem for an account Stem had against him. It had nothing to do with this controversy, but the plaintiff claimed that by reason of an endorsement written on it by Crawford it was admissible to show on cross-examination “the bias, hostility and mental character of the witness Crawford.” He had already testified that he and Stem were not friends, and he doubted whether they ever would he, and as the evidence offered was not- in any way connected with this controversy the Court was right in excluding it, however improper the endorsement may he con ⁵⁸⁴ ceded to have been.

The third exception was to the refusal to. strike out certain evidence of John C. Miller. He testified that on January 12, 1917, he heard Streaker and Crawford talk about the farm, and Crawford told Streaker that Miller was there to rent in case he gave it up. He said that Streaker stated “that I could have the farm as far as he was concerned, and he had nothing to do with the wheat crop, that was between Mr. Crawford and I and the plowing could go with it.” Streaker had already testified to the conversation, and denied that he had told Miller that he had sold the wheat to Crawford. For that and other reasons which might he given we can see no valid objection to the evidence of Miller.

The first prayer of the plaintiff proceeded on the theory that he had purchased the wheat crop from Streaker on March 1st, 1917, but made no reference to the alleged purchase of it by Crawford in January. The Court modified it by inserting in it, “provided the jury do not find that the said Streaker had previously sold the said interest in the said wheat crop to the said Crawford,” and granted the prayer as modified. If the sale to Crawford was a sufficient compliance with the statute and was made prior to March 1st, it was of course proper to modify the prayer offered by the plaintiff, but the Court ought to have gone further and have instructed the jury as to what was necessary under the statute to make it a valid sale. The jury could not he presumed to know that, and if it was satisfied that Streaker had agreed to sell the wheat to Crawford before the 1st day of March, it might not have felt bound by such matters as whether there was an acceptance, receipt or delivery, but it had nothing in that prayer to guide it.

The defendants’ first prayer did present their theory, but neither prayer- referred to the other and the modification of the plaintiff’s might have been misleading, without some explanation as to what was sufficient to make a valid sale—leaving of course the facts to the jury. Constructive delivery is a mixed ques ⁵⁸⁵ tion of law and fact, and the Court can instruct the jury as to the legal effect of any particular circumstance which may be offered to the jury and from which the delivery is to be deduced. Atwell v. Miller, 6 Md. 11 , 19. But after all, the case turns on the question whether the alleged sale by Streaker to Crawford was a valid one under the statute, if the jury believed the evidence of the defendants as to what occurred.

We are not now speaking of the necessity v&l non of a bill of sale. It is said in the brief of tho appellees that “In this ease no earnest was given by the buyer of the growing crop, or did the buyer give something in part payment.” As we have already indicated, we think there was sufficient evidence of an acceptance within the meaning of paragraph (3) of section 25 to authorize the submission of that to the jury, but the record in this case strikingly shows the danger of such a rule, if the theory of the defendants is held to be correct in reference to the effect of the alleged sale to Crawford. The uncontradicted evidence is that the plaintiff purchased Streaker’s interest in the wheat crop, paid him for it and took his receipt while Streaker was still in actual possession of the farm—it being about a month before the end of his tenancy. The farm was in sight of plaintiff’s place of business and he had no reason to suspect that Streaker had sold the wheat to Crawford, or anyone else.

Streaker told him that Crawford had refused to give him his price and as he was going away he wanted to sell it. He testified at the trial to tho same thing, and positively denied that he had sold it to Crawford. Crawford has never yet, as far as the record discloses, paid a cent on the purchase money and has not given him a release for the clover seed, which he said Streaker was to have furnished and which he claims was a part of the consideration for the wheat. He said Streaker was to come the day after the sale of his personal effect (which was on March 12th), but he did not come.

He testified: “I never paid a cent in cash money on wheat outside of the clover seed, I con- ⁵⁸⁶ aider that as part payment, I never went to Mr. Streaker to give him any money, it was his place to come to me. I owe him for the wheat and he owes me.” At that sale Crawford was the auctioneer and Streaker paid him for his services—although there was testimony that Streaker said he wanted that settled separately from the claim between them as landlord and tenant. It was recently said in Castle v. Swift & Co., 132 Md. 631 , 104 At. 187 , by Judge Pattisos", speaking for the Court, that: “It is clear that the terms of the statute require two distinct acts on the part of the vendee; he must accept, and he must actually receive, a part of the goods, in "order to render the contract binding on him. There may be an actual receipt without any acceptance, and there may be an acceptance without any receipt.

An acceptance may precede or follow the receipt, or it may be contemporaneous therewith; and at times even a receipt may be evidence of acceptance, but it is not the same thing. Hewes & Co. v. Jordan, 39 Md. 472 , 17 Am. Rep. 578 .” Again it was there said: “All cases admit that the term 'actually receive’ found in the statute, means the acquisition of possession by the buyer, and whatever difficulties exist in regard to its meaning are largely due to the inherent difficulty of determining what is., in fact, possession. This Court, however, has said, speaking through Judge Alvey, that: 'The receipt of part of the goods is the taking possession of them.

When the seller gives to the buyer the actual control of the goods, and the buyer accepts such control, he has actually received them.’ Hewes & Co. v. Jordan, supra. It is said, however, upon good authority, that goods may be received by the buyer within the meaning of the statute, and yet allowed to remain in the hands of the vendor, if it be shown that the seller has ceased to. hold in the character of unpaid vendor and holds wholly as bailee for the buyer. Williston on Sales, sec. 91, and the numerous cases cited in note thereto.” ⁵⁸⁷ We do not doubt that the delivery required by the statute may be constructive in reference to a growing crop of wheat as between the vendor and the vendee, but whether it is sufficient as against a subsequent purchaser, acting in good faith and without notice of a prior sale, who has paid value for it, presents a different question—especially under such circumstances as are shown by this record. Nothing was done by either Streaker or