Berry v. Waterman , 71 Miss. 497 ( 1893 )

Campbell, C. J.,

delivered the opinion of the court.

Conceding the validity of the contract of sale between Cox and Waterman, the latter acquired nothing but the right to claim a performance of the contract, and to damages for non-performance. He did not acquire title to the cotton, but a right to get the title by performance, until which he had no ownership of the cotton, and therefore could not maintain an action for it. The statute of frauds has reference only to the “ contract for the sale,” and has no influence whatever on a sale. The two are totally distinct. Waterman had a contract for the sale, but until its terms were complied with by delivery of the cotton, there was no sale; hence, no right of action for the cotton, the maintenance of which depends on title. This disposes of the case, which is too plain for dispute. Nothing but zeal obscuring judgment could give rise to litigation in so plain a case, and, the wonder is, how the learned judge was misled about it. All concerned must have been mystified by the statute of .frauds, which has nothing to do with the case.

Reversed, and remanded for a new trial.