The counsel for the defendant objects to the portion of the charge which was excepted to on the trial, as to the effect of the payment 'of $47 on the 14th of December upon the transaction for the sale of the broom corn. The circuit court in effect told the jury that if they found that this $47 was paid on the purchase price of- the broom corn ; and if they found the facts about that payment substantially as stated by the plaintiff; that the parties knew and understood that the previous parol arrangement was not binding; and that the money was paid and received to make a binding contract, — then this was a sufficient ratification and adoption at that time of the parol agreement previously made, and satisfied the requirements of the statute.
Now the counsel insists — and as it seems to us with much reason — that this direction of the court does not essentially differ from the charge given on the former trial, which this court held to be erroneous. 32 Wis., 594. It seems to us difficult to make any real distinction in the propositions laid down by the court on the different trials. On the first trial, the court in substance held that a subsequent payment on a contract void by the statute had the effect to take the contract out of the statute and to render it valid ; while the natural import of this part of the charge on the second trial amounted really to the same thing. It is true, there is a reference to the statements made by the plaintiff, who testified as to the facts attending the payment of the money at that time; but this testimony is not very satisfactory as to whéther a new contract was then made or not. Wo think the circuit judge should have more *641clearly and distinctly informed tbe jury what it was essential for the parties to do at the time in order to make a valid agreement and satisfy the statute.
When this cause was here on a former appeal it was held that to make valid a parol agreement for the sale of goods exceeding in price $50, where there is no delivery of any part of the goods, the buyer must at the time the contract is entered into pay some portion of the purchase money. 'This is the plain, explicit language of the statute; and it is the duty of the courts to give effect to it as enacted, rather than attempt to evade or nullify its provisions by some nice and refined construction. See sec. 3, ch. 107, R. S.; 32 Wis., 594; Paine v. Fulton, 34 Wis., 83. According to this view,- if a valid contract is made at all, it is made at the time the money is paid' and received ; for the payment of some earnest money is an essential requisite of the contract. Of course, the fact that parties fail in the first instance to make a valid agreement does not render it impossible for them afterwards to make a binding contract by complying' with the provisions of the statute upon the subject. Says Church, C. J., in Allis v. Read, 45 N. Y., 142-150: “After a void contract has been made, the parties may make a valid contract by adopting the terms of the void contract, provided it appears that such terms are understood and assented to, and a payment is made and received upon the contract. It is a valid contract from that time, and the statute is as fully satisfied, as if the contract had been made valid originally by a payment at that time.” But it must appear that the parties understood and agreed upon the terms of the contract at the time of payment, so as to make the payment apply on a present contract and not upon some past void agreement.
Under the charge of the court the jury might have found that the parties knew and fully understood, when the $47 were paid in December, that the previous parol arrangement for the sale of the broom corn was not? binding. They also- might have been satisfied from the evidence that the money was then *642paid and received for tbe purpose of making that arrangement valid and obligatory in law. But even tbe establishment of these facts would be insufficient to make a valid contract. Because it was essential that the minds of the parties should then meet as to the terms and conditions of a contract, so as to form and make one. True, this might be done by referring to the previous oral agreement, and by adopting and assenting to that agreement as the new contract. If the minds of the parties met and assented to the terms and conditions of the prior agreement, then the statute would be satisfied, because a complete contract would be entered into at the time part of the purchase price was paid. And the real question therefore was, Did the parties, on the 14th of December, make a new contract by referring to, adopting and confirming the terms of the previous void agreement ? Did their minds then meet upon the subject of the contract of sale, and was the $47 paid upon this new contract ? If so, there was a valid contract entered into which can be enforced; otherwise there was not.
We do not think these questions were fairly submitted, nor did the court in the instruction excepted to, make the distinction which under the circumstances it was important should be made, between the payment and acceptance of the $47 on account of the prior oral agreement, and a payment and acceptance upon a contract which was made at the time of such payment.
The other question, whether the court was right in denying the motion for a nonsuit on the ground of the pendency of the former action, has already been decided and is res adjudicata. But, for the error in the charge above noticed, there must be a new trial.
By the Court.— The judgment of the circuit court is reversed, and a new trial ordered.
Lyon, J., took no part.