101 F. 200 | U.S. Circuit Court for the District of Indiana | 1900
Action by the plaintiff upon a memorandum of sale alleged to have been made by the defendant with J. H. Sternbergh & Son, which contract has been assigned to the plaintiff, for the recovery of damages for failure to deliver the personal property alleged to have been sold. The complaint is founded upon a memorandum, in writing as follows:
Philadelphia, February 24th, 1899.
Memorandum of Sale by Cabeen & Company.
To Messrs. X H. Sternbergh & Son, Acting as Selling Agents
Reading, Penna. . for Midland Steel Company,
Muncie, Indiana.
Received Mar. 3,
1899.
Midland Steel Co.
Seven hundred (700) tons acid, open-hearth steel billets, analysis to he Silicon .101
Phosphorus .081
Sulphur .03 i- of one per cent, or less.
Manganese .501
Carbon .10 to .12 J
Buyer would prefer Manganese from .40 to .45%.
Price. Twenty-four dollars and seventy-five cents ($24.75) per ton of 2,240 Lb., delivered on tracks of P. & R. Ry., Reading, Penna.
*201 Terns. Cash thirty days from date of invoice.
Deliveries. Shipments to commence April or May, 1899, and to continué at the rate of 200 tons per month to completion of the contract.
Note. Sizes to be 4"x5" or 5"x5".
Notice. That sellers are not to be responsible for delay In deliveries as herein specified, when such delay is caused by strikes, accidents, or other causes beyond their control.
Accepted: . Caheen & Co.,
Midland Steel Company, Selling Agents.
R. B. Beaty, President.
Mch. 4/99.
[.Internal Revenue.]
Tlie defendant has demurred to the complaint for the reason that the memorandum of sale is not sufficient to take the case ant of the statute of frauds; and, second, because in the memorandum the steel billets are designated to be 4"xo" or 5"x5", and it is not alleged that the plaintiff notified the defendant which size of billets' it would be required to deliver.
The statute of frauds of this state is as follows:
“No contract for the sale of any goods for the price of fifty dollars or more shall he valid unless the purchaser shall receive part of said property, or shall give something in earnest to bind the bargain or in part payment, or unless some note or memorandum in writing of the bargain he made and signed by the parry to be charged thereby, or by some person thereunto by him lawfully authorized.” 3 Burns’ Rev. St. § 6635.
The property agreed to be sold largely exceeds the price of $50. The sole contract of sale disclosed in the complaint is evidenced by the writing copied above. The plaintiff does not count upon a verbal contract of sale, coupled with a delivery to and acceptance by the purchaser of a part of the property, nor upon part payment, nor upon the giving of something in earnest to bind the bargain. The right to recover damages is grounded solely upon the sufficiency of the above memorandum to constitute a “writing of the bargain” made by the parties. The note or memoran dupa in writing of the bargain, when relied upon as the foundation of a right to recover damages for failure to deliver the property, must disclose with substantial accuracy every fact material to constitute a contract of bargain and sale. It is therefore essential that such a note or memorandum shall contain within itself a description of the property agreed to be sold by which it can he known or identified, of the price to he paid for it, of the party who sells it, and of the party who buys it. It is settled to he indispensable that the writ-, ten memorandum should show, not only who is the party to be charged, hut also who is the party in whose favor he is charged. The name of the party to he charged is required by the statute to be signed, so that there can be no question of the necessity of his name being signed to the writing; but the authorities have equally established that the name or a sufficient description of the other party is indispensable, because without it no contract is shown, inasmuch as a stipulation or promise by one does not bind him, save only to the person to whom the promise was made, and, until that person’s name is shown, it is impossible to say that the writing contains a memorandum of the bargain. Peoria Grape-Sugar Co.
Nor does the fact that the contract mentions the size of the billets to be 4"x5" or 5"x5" render the contract uncertain or insufficient. The defendant would have performed its contract if it had tendered either size of billets at the place and within the time specified. The memorandum is in the nature of what is usually termed a “soldi note” made by the defendant, through its selling agents, Cabeen & Company, to J. EL Sternbergh & Son, as buyers. In making it the seller designates for its own benefit that it shall have the right to fulfill the contract by the delivery of billets either 4"x5" or 5"x5". The option to determine the size was with the seller, and not with the buyer. For these reasons, the demurrer is overruled, to which defendant excepts.
