A.K. Burrow Co., Inc. v. Mill Gin Co. , 138 Miss. 284 ( 1925 )

^* Headnotes 1. Frauds, 27 C.J., section 274; 2. Warehousemen, 40 Cyc., p. 413 (1926 Anno); 3. Frauds, 27 C.J., section 292 (1926 Anno). This is an action in which the appellee, the plaintiff in the court below, seeks to recover from the appellant damages for the breach of an alleged contract for the sale by the appellant to the appellee of cotton linters.

The question presented by the record is whether or not the contract sued on violates the statute of frauds. The facts, in substance, are as follows: The appellant agreed to purchase from the appellee thirty bales of cotton linters at a price in excess of fifty dollars. Its representative inspected the cotton, placed a tag with the appellant's name on each bale thereof, instructed the appellee to store the cotton in a warehouse, and to attach the receipts therefor to a draft on the appellant for the price of the cotton and the draft would be paid on presentation. The appellee stored the cotton in a warehouse and received from the warehouse company negotiable receipts therefor, and about two months thereafter it made a draft on the appellant with the warehouse receipts attached thereto; but the appellant declined to pay the draft. The cotton was then sold by the appellee for less than the price which the appellant had agreed to pay therefor, and this suit was brought to recover the difference.

No part of the purchase money having been paid, the contract for the purchase of the cotton is void under the statute of frauds (section 4779, Code of 1906; Hemingway's Code, section 3123), unless the storing of the cotton in the warehouse was a delivery thereof to the appellant. The provision of this statute that, "A contract for the sale of any personal property, goods, wares, or merchandise, for the price of fifty dollars or upward, shall not be allowed to be good and valid unless the buyer shall receive part of the personal property, goods, wares and merchandise," etc., can be complied with only by the buyer taking 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.

It is true that the property may be received for the buyer by an agent authorized so to do, but the warehouse company here held the cotton as the agent of the holder of the receipts issued by it therefor (sections 8 and 41, chapter 218, Laws of 1920; Hemingway's Code, Supplement 1921, sections 7957h and 7957o1;Love v. People's Compress Co. [Miss.], 102 So. 275), with the control of which receipts the appellee never parted. Consequently, the control and, in so far as the statute of frauds is concerned, the possession also of the cotton remained at all times with the appellee.

The cases of Johnson v. Tabor, 101 Miss. 78, 57 So. 365,Moreland v. Newberger Cotton Co., 94 Miss. 572, 48 So. 189, and Townes v. Holland, 116 Miss. 541, 77 So. 525, relied on by the appellee, are not here in point, for the statute of frauds was not therein involved. The question decided in those cases was whether title to the property sold had passed, and, under a contract otherwise valid, title to property sold may pass without delivery if the parties so intend.

The judgment of the court below will be reversed, and judgment rendered here for the appellant.

Reversed, and judgment here.