Opinion
Fall Sessions, 1835.
Layton for plaintiff.
Cullen and Frame for defendant.
It was objected by Cullen and Frame for the defendant, 1st. That the proof of a bailment of the horse and gig did not support the action; and, 2d. That the sale of the crop of corn standing on the ground and growing, was a sale of an interest in the land, and being within the statute of frauds must be evidenced by writing. 6 East Rep. 102, Crosby vs. Wadsworth; 11 East Rep. 362, Parker vs. Staniland; 2 Taunt. 38, Emerson vs. Hillis. And 3d. That if recoverable in assumpsit, the plaintiff must count on a special contract for a crop of corn bargained and sold, and not for goods sold and delivered. 1 Chitty Plead. 339; 5 Esp. Rep. 176; 13 East Rep. 249.
The Court said that many of the authorities as to the second point distinguish between contracts executed and executory, and regard a contract executed on one side as out of the statute. The later cases seem to conflict with the earlier. We shall charge the jury that if this contract has been executed by the receipt of the corn by defendant, the plaintiff may recover. And though the declaration should be for a crop of corn bargained and sold, if the proof establish that the defendant took the corn, sold it and received the proceeds, the plaintiff may recover on the count for money had and received to his use; for, even without any contract, and if the defendant took it as a trespasser, the plaintiff might waive the trespass and recover in this form of action. On the first point there has been some proof of an actual sale of the horse and gig, which we shall leave to the jury.
The plaintiff then proved a sale of the corn to defendant for $195: and that he had gathered and sold it, and received the proceeds. The horse was worth $60: — value of the gig not proved.
Verdict for plaintiff $138 25.