#### Draper, Respondent, vs. Wilson, Appellant.

*October 6*—

October *25, 1910.*

*Matute of frauds: Invalidity of contract not available to stranger.*

The invalidity of a contract under the statute of frauds is a personal defense and is not available to one who is a stranger to the contract.

Appeal from a judgment of tbe county court of Wauke-sha county: M. S. G-riswold, Judge.

*Affirmed.*

This is an action of replevin for tbe recovery of sis and one-tentb tons of bay. Tbe action was commenced in justice’s court. 'Erom a judgment in favor of tbe plaintiff appeal was taken to tbe county court, where judgment was also rendered in favor of *the*plaintiff.

One Erank Eaestel was a tenant on tbe farm of *George Wilson,*tbe defendant. When bis term was about to terminate be sold a number of articles on tbe farm to *Wilson, among*which was, as designated in tbe bill of sale, “bay in barn and cow barn.” This sale was concluded on November 3, 1906. *Wilson*claims that be bought all of tbe bay on tbe farm which was owned by Eaestel. Eaestel denies this, and testified that *Wilson*bought only tbe bay in’the west mow of tbe large barn and tbe bay in tbe cow barn. Immediately after tbe sale of tbe bay to- Wilson, Eaestel made an oral agreement with tbe plaintiff, *Draper,*for tbe sale of tbe bay in tbe east mow of tbe large barn. This was estimated at six and one-balf tons, of tbe value of $61. No written agreement was made by Eaestel and *Draper,*nor did *Draper*pay anything on tbe sale until tbe latter part of December. *Draper*testified that be went to tbe farm several times to see *Wilson*and to make arrangements for carrying away tbe bay be bad bought, but that *Wilson*was away and that be did not see him until about February 1, 1907, tbe day before be commenced this action, when be made a demand for tbe bay, and *511■that *Wilson*prohibited bis taking it and claimed to have pur-•cbased all of the hay in the two barns from Eaestel. The sheriff seized about 1,800 pounds of hay which was in the ■east mow of the barn.

This is an appeal from the judgment for $36 and costs in favor of the plaintiff, *Draper,*the court holding on the evi•dence that the defendant had not purchased the hay claimed by the plaintiff, and that the defense that the contract of ■sale between Eaestel and *Draper*was void under the statute •of frauds was not available to the defendant, *Wilson,*because he was a stranger thereto.

The cause was submitted for the appellant on the brief of *■Carl B. Bix,*and for the respondent on that of *G. Holmes Daubner.*

SiebecKee, J.

The evidence is ample to sustain the court in the conclusion negativing the claim of the defendant that he had purchased the hay in controversy from Eaestel, the former tenant of the farm, and hence this finding must stand. Erom this verity in the case it follows that the defendant was ■a stranger to the alleged agreement of sale of hay by the tenant to the plaintiff and that he was not a privy as to its own•ership. He had merely permitted the tenant to leave the hay on the premises for some time at the tenant’s request.

Defendant, however, seeks to interpose the defense that the plaintiff’s contract for the purchase of the hay is void under the statute of frauds because no note or memorandum thereof was made in writing nor was a part of the purchase money •then paid. The tenant and the plaintiff both acquiesced in the contract before the court and volunteered performance. 'The question presented is whether the defendant, a stranger to this contract, can plead the defense of invalidity of the •contract of sale under the statute of frauds. We deem it established by reason and authority that the defendant has no ■such interest in the contract and its subject matter, under the *512circumstances bere shown, as to authorize him to plead this-defense. Such a statutory defense is held to be personal and is not one available to strangers to such agreements. The rule has been well stated as follows: “Like usury, infancy,, and a variety of other defenses, it can only be relied upon by parties or privies.” *Chicago D. Co. v. Kinzie,*49 Ill. 289; *Rickards v. Cunningham,*10 Neb. 417, 6 N. W. 475; *Cowan v. Adams,*10 Me. 374, 25 Am. Dec. 242; *Christy v. Brien,*14 Pa. St. 248. This rule would seem to be necessary to-preserve to parties to such a contract the right to voluntarily waive the statute and perform the contract, as was declared they had the right to do by this court in *Whiting v. Gould,*2 Wis. 552; *Godden v. Pierson,*42 Ala. 370.

The court properly awarded judgment for the plaintiff.

*By the Court.*— Judgment affirmed.