This case was tried in the court of common pleas on the amended petition, in which the plaintiff, William Starr, merely averred that he entered into a written contract with the defendant, a copy of which was attached to the pleading, that the plaintiff had fully complied with the conditions of the agreement, but that the defendant, John R. Jeffery, had failed to comply and failed to pay the plaintiff the sum of $2,500 due him thereon. The trial resulted in a verdict and judgment in favor of the plaintiff, William Starr, for $2,656.64, the contract price for molding sand sold to the defendant.
The plaintiff in error contends that the charge to the jury contains error prejudicial to him, and that the verdict and judgment are against the weight of the evidence.
The contract between the parties recites that the *Page 118 first party, William Starr, sells to the second party, John R. Jeffery, all of the marketable molding sand located on twelve acres of land owned by Starr. The parties stipulated that Jeffery was to pay Starr therefor 15 cents per ton for the sand removed by him, and a further sum of 5 cents per ton as royalty, the payments to be made monthly for sand removed and shipped by Jeffery. The contract also provides that it should be in force for five years from November 1, 1921, and the purchaser agreed to remove an average of 3,000 tons a year, and, in the event that he did so remove not less than that number of tons per year on the average during the first five years, the contract would be extended for an additional period of five years. The purchaser made an advance payment of $500 on the contract, and it is agreed that he has paid to the owner $1,057.01, which covers the full contract price for all sand which he removed from the premises.
The answer admits the making of the agreement, and denies every other allegation contained in the amended petition. It avers that the sand was not marketable, for the reason that it was filled with roots of what is known as foxtail, and also contained hardpan.
On the trial of the case the plaintiff introduced evidence tending to show the quantity of sand removed and the payments therefor, and rested his case. Evidence was introduced on both sides bearing on the question whether the sand was marketable molding sand, the plaintiff's evidence tending to show that it was, and that offered by the defendant tending to show that it was not that quality or grade of sand.
The plaintiff in error insists that prejudicial error was committed in the following portion of the charge: "If, under the law as given to you in this charge and by a preponderance of the evidence in this case you find that the plaintiff fully complied with the conditions of said contract by him to be performed, but that *Page 119 the defendant has failed in the particulars claimed by the plaintiff to comply with said contract, then your verdict should be for the plaintiff. On the other hand, if, under the law as given you in this charge and by a preponderance of the evidence in this case you find that none of the sand in question was marketable molding sand as claimed by the defendant, then your verdict should be for the defendant."
We think the foregoing is not a proper statement of the law applicable to this case under the terms of the contract made by the parties. By the terms of the first portion of that contract, the purchaser could remove all the sand on the twelve acres of land, and by the latter portions of the contract he was obligated to remove 3,000 tons of the sand per year, for a period of five years, and he was entitled to no extension of the contract because he had not removed the full amount so required to be removed. After removing a substantial quantity of sand, the evidence tends to show that the purchaser notified the owner that he would not take any more, for the reason that it was not according to contract, was mixed with the roots of foxtail, and contained hardpan. The court should have told the jury that in no event could Starr recover for more sand than remained on the premises. Under the charge as given, the plaintiff would be entitled to recover for the full 15,000 tons, less the amount delivered, regardless of the quantity of sand on the premises, and the defendant would only be entitled to a verdict by showing that all of the sand was not marketable molding sand; that is to say, that none of the sand was marketable molding sand.
If, under the charge, the jury should find that only one ton of merchantable molding sand remained, it would have been justified in returning a verdict for the plaintiff for the purchase price of 15,000 tons, less the amount delivered and paid for.
The defendant having denied in his answer all the *Page 120 allegations except the making of the agreement, the burden rested on the plaintiff to prove, in an action to recover the contract price, that he had and was able to deliver the goods sold, and the burden of proof did not rest on the defendant. The quality of the sand, that is, that it was marketable molding sand, was part of the description, and the burden rested on the plaintiff to show by a preponderance of the evidence that he had the quantity and quality required by the contract before he could recover the price therefor. Pierson v. Crooks, 115 N.Y. 539, 22 N.E. 349, 12 Am. St. Rep., 831. The bill of exceptions contains no evidence showing the quantity of sand remaining, and there is a conflict in the evidence as to whether the sand was merchantable molding sand, and yet the charge as given submitted neither of these matters to the jury and allowed the plaintiff to recover the amount claimed with no showing of these facts. Not only this, but the testimony of the plaintiff himself showed that he had subsequently contracted in writing to sell the sand to another party; thus, under the evidence in the record, rendering himself unable to perform. The following testimony of the plaintiff appears in the bill of exceptions:
"Q. Didn't you sell this sand after Jeffery quit in 1926? Didn't you contract this sand to another concern? A. I did.
"Q. How much did they take? A. They haven't taken any.
"Q. Their contract has expired, hasn't it? A. I don't think the last one has."
The Uniform Sales Act, which is a part of the statute law of the state, covers the sale of all "goods." The word "goods" is defined in the act, Section 8456, General Code, as including "things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale." The contract to sell this sand therefore comes within the *Page 121 statute. The case at bar is not one to recover damages for the breach of a contract, but to recover the price of the goods. Section 8440, General Code, provides a remedy in case the seller has resold the goods, and that remedy is for him to recover from the buyer the damages for any loss occasioned by the breach of the contract of sale. The next succeeding section provides a like remedy where the seller has rescinded the sale upon the default of the buyer for an unreasonable time. Section 8444, General Code, likewise provides the remedy of the seller where the buyer refuses to accept and pay, and fixes the measure of damages. Section 8443, paragraph 2, General Code, provides the circumstances under which a seller may bring an action to recover the price, although the property in the goods has not passed. The section, however, contains this limitation: "But it shall be a defense to such an action that the seller at any time before judgment in such action has manifested an inability to perform the contract or the sale on his part or an intention not to perform it."
The injustice of permitting a seller, after default on the part of the buyer, to resell the goods and subsequently recover the contract price from the first buyer, must be manifest.
Prejudicial error was committed in the charge of the court and the judgment is manifestly against the weight of the evidence, and for these reasons the judgment is reversed and the cause remanded for further proceedings.
Judgment reversed and cause remanded.
LLOYD and WILLIAMS, JJ., concur. *Page 122