
    Nichols and another vs. Mitchell.
    
      Oonfraet — Statute of Frauds. J
    1. An oral agreement by M. to deliver 35,000 bushels of wheat to N., at a specified time and price (no part of the wheat being delivered or of the price paid), held void by the statute of frauds.
    3. If N. subsequently bought the wheat at M.’s request, and upon hia implied promise to pay the difference between the contract price and the market price at the time of such purchase, such promise is void for want of a consideration. Hooker v. Knob, 36 Wis., 511.
    3. Such purchase cannot be treated as one made for M. by N. as his agent, where it appears that the title was not expected to vest at all in M., but immediately in N.
    APPEAL from tbe County Court of Milwaukee County.
    Tbe complaint sets out two causes of action. Tbe first is that tbe defendant is indebted to tbe plaintiffs in tbe sum of three thousand dollars, for moneys paid and advanced for him, and at bis request, in tbe purchase by tbe plaintiffs, for tbe defendant, of a quantity of wheat. Tbe second cause of action, is to tbe effect that tbe plaintiffs, being commission merchants in Chicago, purchased about twenty-five thousand bushels of wheat at the request of the defendant, that tbe defendant agreed, to put up and keep up tbe necessary margins sufficient to indemnify and save tbe plaintiffs harmless from loss on account of such purchase, and to take tbe wheat when tbe contract matured, or save tbe plaintiffs from loss thereon, and that although tbe defendant put up margins from time to time, yet, when tbe contract matured, be refused to take tbe wheat, by means whereof tbe plaintiffs suffered damage to tbe amount of three thousand dollars.
    Tbe answer is a denial of each and every allegation of tbe complaint.
    Tbe transactions which constitute tbe subject matter of this action, as disclosed by tbe testimony, are substantially as follows : Tbe defendant sold to tbe plaintiffs twenty-five thousand bushels of wheat at a price stipulated, and agreed to deliver tbe same to tbem during a certain month at bis option. No note or memorandum of tbe contract was ever made, no part of tbe wheat was delivered, and no part of tbe purchase money Was paid when tbe contract was entered into.
    Subsequently tbe defendant became insolvent, and immediately thereafter and probably before tbe contract matured, by its terms, be requested tbe plaintiffs to buy in tbe wheat that was due tbem on tbe contract, and they did so, paying therefor $2,475 in excess of tbe contract price.
    It appears that by tbe custom of merchants in Chicago, or rather by tbe laws and regulations of tbe Chamber of Commerce, when tbe defendant failed, bis obbgation to deliver tbe wheat became due, that bis contract to deliver tbe same became thereby matured, and that probably tbe plaintiffs then had tbe right to buy in tbe wheat without directions to that effect from tbe defendant.
    Tbe court instructed tbe jury as follows: “ If you find from tbe evidence that tbe original contract of purchase of tbe wheat was by parol, and that afterwards tbe defendant directed tbe plaintiffs to purchase in tbe wheat, and they did so, and paid or became liable to pay therefor, then you must find for tbe plaintiff.” Tbe jury were also instructed that in such case tbe measure of damages is tbe difference between tbe contract price of tbe wheat and tbe price paid therefor by tbe plaintiffs. These instructions were given in a variety of forms at tbe request of tbe plaintiffs, and instructions of an opposite character, which tbe defendant asked tbe court to give, were refused.
    Tbe jury returned a verdict for tbe plaintiffs, for $2,744.49, which is doubtless tbe amount of such difference and interest thereon from tbe time tbe plaintiffs bought in tbe wheat. .
    Tbe jury also found specially as follows :
    “ 1st. That tbe original contract between tbe plaintiffs and tbe defendant, for tbe sale by defendant to plantiffs of 25,000 bushels of wheat, was not in writing.
    
      “ 2d. That after tbe defendant bad failed, on June 9th, 1870, he did give an order to plaintiffs to buy 25,000 bushels of Wheat on account of and for the defendant.”
    Judgment was rendered for the plaintiffs on the verdict, from Which the defendant appeals.
    
      Carpenter & Murphy, for appellant.
    Finches, Lynde & Miller, contra.
    
   Lyon, J. —

The original contract for the sale and delivery of the wheat by the defendant to the plaintiffs, is precisely like the original contract in Hooker v. Knab, 26 Wis., 511, and is void by the statute of frauds. In that case, a promissory note given by the vendor for the difference between the contract price of the wheat and the increased market value thereof, when delivery was due by the terms of the contract, was held void for want of consideration. ¥e believe that the case was correctly decided, and we are unable to perceive any difference in principle in the two cases. In this case, the defendant requested the plaintiffs to buy in the wheat due them on the void contract, and they did so. This is all the special verdict means, which is to the effect that the defendant gave the plaintiffs an order to buy 25,000 bushels of wheat for him and on his account. If it means anything else, there is not the slightest evidence to support it. There is no testimony which tends to show, or from which it can be inferred, that the parties intended that the title to the wheat so bought in, should vest in the defendant, and in no correct sense can it be said that the plaintiffs bought the wheat as the agents of the defendant. They purchased it for themselves, although at the request of the defendant, for the purpose of fixing and determining the amount of the defendant’s supposed liability on the original void contract.

In Hooker v. Knab, the extent of such supposed liability was ascertained directly by the parties. In this case it was ascertained by an actual purchase of the agreed quantity of wheat in the market. There the losing party gave his promissory note for the agreed sum, while here we have nothing but the implied promise of the defendant to pay the differences against him. If the express prbmise contained in such note was void for want of consideration, surely the implied promise in this case must be void for the same reason. In that case, counsel ingeniously argued that the original void contract bad been executed by the adjustment of the differences and the giving of the note, but ’the court'held otherwise. It is argued in this éase, “with equal 'plausibility, that the giving of the order and the purchase of the wheat, was, in like manner an execution of ‘the original void contract between these parties. But the position is equally untenable. Had the defendant delivered the wheat, or perhaps some portion of it, pursuant to the contract, or bad be paid the differences when ascertained, these acts would have been an execution, or at least a part execution, o± the contract, but nothing less than this would so operate. Certainly, a mere request made by the defendant to the plaintiffs to do an act, which the evidence tends to show, and probably shows, that they bad, by virtue of the custom of merchants where these transactions ’took place, a perfect right to do, with precisely the same results, bad no such request been made, and a compliance therewith, cannot properly be held to operate as an execution of the .original void contract. We find nothing in the case which vitalizes that contract, or gives to it any validity or effect whatever, Such being the case, it is idle to invoke, in support of the judgment herein, -the rules of law concerning the obligation of a person to reimburse another for moneys paid by him to the use of the former. While that remains a void contract, the plaintiffs have not paid for the use óf the defendant the difference between the contract price óf the wheat and the price for which they purchased in the same, but they have paid such difference for their own use, and -cannot lawfully recover the amount thereof of thé defendant.

It follows from these views that the learned county judge erred in giving the instructions mentioned in the foregoing statement of the case.

The judgment of the county court must be reversed and a venire de novó awarded.

By the Court.— So ordered.  