Moore v. Love ( 1880 )

Chalmers, J.,

delivered the opinion of the court.

The most favorable light in which the claim of the defendant in error can be viewed is to consider him as invested with the rights of Raiford, and entitled to hold the cotton by virtue of the latter's purchase, which preceded the levy of the attachment. Did Raiford acquire title? He thus states the facts connected with his alleged purchase: “ W. F. Love presented samples and weights of eight bales of cotton on Dec. 12th, 1878, and I agreed to give him a certain price for said cotton, and he was to take it to the railroad at Summit and ship the same to New Orleans. I never saw the cotton. I would have paid Love for the same had he demanded it, or what money I had on hand. Love was to wait a few days for the money.” Such is his statement of what passed. The cotton was at the time some miles distant, had never been seen by Raiford, and was levied on in a few hours after the above negotiations, and before any thing had been done to perfect them.

These facts do not meet the requirements of a valid sale under the Statute of Frauds. The cotton was worth more than fifty dollars. No part of the purchase-money was paid, no memorandum in writing was made, and no portion of the goods were delivered, unless the samples were. The delivery and receipt of samples, conceding that they took place, can only be held a compliance with the Statute of Frauds when they are considered and treated by both parties as constituting a part of the goods sold, and as diminishing the quantity or weight of such goods to the extent of their own bulk. Whether they are so received and regarded is a question of fact, the burden of establishing which devolves upon him who asserts it. Where they are treated by the parties as specimens only of the goods sold, a delivery of them to the buyer does not satisfy the requirements of the Statute of Frauds. Benjamin on Sales (2d Am. ed.), § 142, note c, and cases cited. Talcing Raiford’s own version of the transaction between Love and himself, nothing more is shown than an executory agreement to buy at a certain price, which failed of execution by the intervention of the attachment. Love, of course, can prefer no claim to the cotton growing out of his own payment to Everett after the levy of the attachment.

Judgment reversed and new trial awarded.