Opinion hy

Joseph Bennett brought, this suit against Alfred Nye, upon a contract by' which- Nye sold and agreed to deliver to Bennett, twenty-nine fat hogs, averaging three hundred pounds eacb in weight. The-petition alleges a breach, &c. The answer denies the contract and' damages.

On. the trial the plaintiff offered to- prove a parole contract, and the court decided that the contract could only be proved by written evidence. Judgment was rendered for the defendant.

The only question presented, arises upon a construction of the statute of frauds. The Oode, § 2410, requires contracts “ in- relation to the sale of personal-property,. when no part of the property is; deli vereda and no part of the price paid, to ho in writing.” § 2411 qualifies *411that part of § 2110, by saying that “it does not apply when the article of personal property sold is not. at the time of the contract owned by the vendor, and ready for delivery; but labor, skill, or money, are necessary to bo expended in producing or procuring the same.”

The fact which removes a parole contract from the operation of the statute of frauds, under this contract, can well exist outside of the contract. The party should have been, permitted to prove bis contract, and the facts which would take it out of the statute. If the plaintiff could prove, that at the time the contract was made, the hogs were not owned by the defendant — not ready for delivery — that labor, skill, or money, would necessarily have to bo expended before they could be produced or delivered, then he would have taken the case out of the statute.

Judgment reversed.