Jones v. Taylor , 1 Greene 434 ( 1848 )

Opinion by

Greene, J.

The jury in this ease found a special verdict, by which it appears that the defendant agreed to buy a horse of the plaintiff, and pay him fifty dollars in specie for it on the following Monday, at which time the horse was to be delivered ; and to secure the sale from any other person, deposited fifteen dollars in bank bills with the plaintiff, to be kept by him till the performance of the agreement. The fifteen dollars were subsequently returned to the defendant, to aid him in making up the fifty dollars in specie as purchase money for the horse, with the understanding that if the purchase should not be completed within the time agreed upon, the plaintiff should be at liberty to sell the horse to any other person; that there was no written memorandum of the agreement, no earnest money nor part consideration paid; that the plaintiff never delivered the horse to the defendant; and that in the failure to complete the purchase, “ the plaintiff suffered no damage in fact.”

The court decided that the facts found by the jury, are not sufficient in law to enable the plaintiff to recover the fifteen dollars which he refunded to the defendant, and that he take nothing by his suit. In this determination of the court, we can see no error. Under the finding of the jury, the arrangement between the parties was cancelled by their subsequent proceedings; and clearly comes within the statute of frauds, being without written memorandum or consideration, and was therefore void.

Judgment affirmed.