Entrekin v. Byrd , 149 Miss. 340 ( 1928 )

^* Corpus Juris-Cyc References: Frauds, Statute of, 27CJ, p. 231, n. 62; p. 244, n. 26; p. 248, n. 78. C.W. Byrd and Mrs. Olivia Sistrunk, administratrix of Henry Sistrunk, deceased, recovered a judgment in the court below against W.H. Entrekin and Ed Johnson, Sr., for the price of sugar cane alleged to have been sold and delivered by Byrd and Sistrunk to Entrekin and Johnson, who have brought this case to this court.

One of the assignments of error challenges the refusal of the court below to direct a verdict for the appellants, the ground of the request therefor being that the contract sued on is void under section 4779, Code of 1906 (section 3329, Hemingway's Code 1927).

According to the evidence for the appellees, Byrd and Sistrunk owned a patch of sugar cane growing on land belonging to Byrd, which Sistrunk sold to Johnson, for himself and Entrekin, in November, 1926, and agreed to cut and bank the cane, for which, when so cut and banked, Johnson, for himself and Entrekin, agreed to pay ten dollars per thousand stalks. The cane was cut and banked by Sistrunk. It was not counted when Johnson agreed to purchase it, but was counted by Byrd and Sistrunk after it was cut, and before it was banked, the count disclosing thirty-two thousand stalks thereof, making three hundred twenty dollars to be paid therefor, and to recover which this suit was brought. The cane was banked on the land on which it was grown, and the appellants were given until March 1st thereafter to remove it. Nothing was paid by the appellees on this contract, and they exercised no control over the cane, except that Johnson gave Sistrunk some directions as to how to bank it.

Johnson's version of his agreement with Sistrunk materially differed from that of the appellees, and, if true, discloses a complete defense for the appellants. As the contract sued on rests in parol and no part of the alleged purchase price of the cane was paid or secured, it is, of course, void under the statute here invoked, unless the appellees received all or a part of the cane alleged to have been purchased by them. The receipt by the buyer contemplated by this statute is the taking of the property or a part thereof "into his possession and control with intent to become the owner" (Young v. Alexander, 123 Miss. 708, 86 So. 461), and "some physical change must take place that is susceptible of being proved. If when the alleged agreement is completed the status of the property is exactly the same with reference to its physical possession as it was prior to the agreement, there is no delivery under the statute." Easley v.Stewart, 131 Miss. 756, 95 So. 525. The only change in thestatus of the cane after the alleged sale thereof to the appellants was that it was cut and banked, but it was not removed from the land which belonged to one of the sellers, and, so far as the outside appearance disclosed, remained in the possession of the sellers. Moreover, assuming that a contract for the sale of the cane was in fact made, it is clear that the appellees continued thereafter in possession of the cane, for the purpose of counting the stalks in order to ascertain the amount the appellants would owe them therefor, and when such is the case there is no such delivery by the seller and receipt by the purchaser, as is contemplated by the statute. 27 C.J. 248.

Reversed, and judgment here for the appellants.

Reversed.