Wenger v. Grummel

⁸¹ TTrnjbr, J., delivered the opinion of the Court: The decree from which the appeal in this case is taken determines and states “that the defendant contracted with the complainant for the delivery of the tomatoes to be grown on .a piece of land of the defendant, described in the evidence :as containing five acres, more or less, and that- the complainant should pay therefor the price paid by the packers in the vicinity in which the parties hereto live, which price was first fixed at forty-five cents a bushel, but later was raised to fifty cents a bushel, and that the complainant is 'entitled to have said contract specifically enforced,” and the defendant was directed by the decree to “deliver to the complainant all the tomatoes grown on said five acres, and that upon such delivery the complainant pay to the defendant at the rate of fifty cents therefor.” There is a serious conflict in the testimony as to the existence of the agreement to which the decree refers. But upon the record we should not feel justified in reversing the de^ cisión of the lower Court upon that issue of fact. There is¿ however, another question in the case upon which we have reached a conclusion inconsistent with the decree. As provided by the Uniform Sales Act: “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.” Code, Art. 83, Sec. 25.

The term “goods,” as defined by Section 97 of the Act, includes '“industrial growing crops.” The value of the tomatoes alleged to have been sold in this case appears to have been largely in excess of fifty dollars. No part of the goods was received by the buyer. There was no memorandum in writing of the contract. The bill averred ⁸² and the plaintiffs testified that it was verbal.

The contract is therefore not enforcceable unless it is proven that the plaintiffs gave something in earnest to bind it, or in part payment. As a supposed compliance with this condition the plaintiffs rely upon the fact that they furnished the defendant-some seed and plants for use in producing the crop- of tomar toes to be purchased. It appears that the seed and plants obtained from the plaintiffs were not actually used in the production of the crop, and there is no proof that they were agreed to be given in earnest to bind the bargain, or that they had any relation whatever to the contract price. Upon this subject the member of the plaintiff firm who negotiated the transaction testified in chief as follows: “Q. What was said between you and him (the defendant) about seed ?

A. After I gave him the seed he said he would plant the seed for me and I was to get the tomatoes from him * * * Q. When did he get the