Smith v. Evans

The opinion of the court was delivered by

This was an action of claim and *74delivery for two bales of cotton of the alleged value of $75. The plaintiff alleges that this property belongs to him, and he is entitled to the possession thereof, but it is wrongfully withheld from him by the defendant! The defendant answers, first, by a general denial ; and secern'd, by plea of the statute of frauds, that there was no sale .and delivery of the cotton. The case was first heard by S. W. G. Shipp. -Esq., a trial justice of Marlboro County. There was much testimoniero and con, which is all printed in the “Brief.” The trial justice made a full and clear statement of the facts, and his judgriicnt of the law involved was so clear and satisfactory, that we adopt it, and hope the reporter will have it printed as the report of the facts of the case. He held that there was no legal sale and delivery, and that the plaintiff could not recover, and he gave judgment for the defendant for the return of the property, and in case a return could not be had, then for $75, its value, and for costs.

From this decree the plaintiff appealed to the Circuit Court, the Court of Common Pleas of the county, for a new trial on various grounds, but principally upon the ground that there was such an acceptance of the cotton as constituted a compliance with the statute of frauds. His honor, Judge Izlar, heard the case on the papers, and held that, “it appearing to the court that the grounds of appeal are not well taken, that the testimony shows that there was not such a delivery of the cotton in question as is required by the statute of frauds in such case provided, it is adjudged and ordered, that the judgment of the trial justice be affirmed, and the case remanded to him for the purpose of carrying into effect said judgment, and that the appellant pay the costs of this appeal.” From this decree of the Circuit Court the plaintiff has again appealed to this court upon the ground that “His honor, the Circuit Judge, erred in holding that there was not such a delivery of the property in question as is necessary to constitute a valid sale under the statute of frauds.”

1 We have read the testimony carefully, and we cannot say that the judge erred in his concurrence with the trial justice, that there was not such a delivery of the cotton as is required by the statute of frauds. “Where, in an agreement for the sale of personal property, something remains to be *75done, as between vendor and veqdec, for the purpose of ascertaining either quantity, value, or quality, such as measuring, weighing, or counting out of a common parcel, there is no delivery.” Shindler v. Houston, 1 N. Y., 261, and a number of other cases.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.