89 P. 78 | Utah | 1907
Lead Opinion
This is an action for damages for breach of an alleged contract. The question for determination arises upon the sufficiency of the complaint. The material allegations of the complaint are, in substance: That on the 16th day of October, at Wellsville, Utah, the plaintiffs (appellants) and defendants (respondents) entered into a certain written contract in words and figures as follows: “Oct. 16, ’03. I hereby sell and agree to "deliver to Bjailey & Sons at their place of business in Logan City, Utah, 125 bushels of lucern seed at the rate of 10 3-4 cents per pound after same seed is recleaned; said seed to be in said David & Andrew Leish-man’s sacks. [Signed] Andrew Leishman. David Leish-
The only error assigned is that the court erred in sustaining the demurrer. Respondents’ counsel contends that the complaint is insufficient, and that the ruling of the court is correct, and in support of his contention urges, in substance, the following reasons: (1) That the memorandum relied on is signed by respondents only, that no consideration is mentioned, and that the memorandum contains no promise on the part of appellants binding them. (2) That the appellants do not aver any consideration for the promise of re
For the purposes of this decision, we will assume the contention of counsel for respondent that the memorandum sued on is a mere offer to sell made by respondents to appellants. As an offer, therefore, it was subject to acceptance by appellants, and was not intended as a complete contract, and would not be such unless and until acceptance. In this view it may not have been the intention of the. parties that the memorandum should be signed by both, at its inception at least. When the offer was accepted, however, by appellants, it was thereby converted into a complete contract; the respondents being bound to sell and deliver the seed, and the appellants, by a promise the law implied from acceptance, bound to receive and pay therefor. True, appellants might have accepted the offer by writing such acceptance on the memorandum and have signed it, but such was not necessary to bind them. An oral acceptance was sufficient. (Browne on Stat. Frauds (2d Ed.), section 345-a.) The text, as- there given, is sustained by an array of cases that need not be mentioned here. But, in any event, the signature of respondents was sufficient to satisfy the statute. The requirement to subscribe or sign the memorandum is purely statutory, and our statute requires that the party “to be charged” only need subscribe. This, it has often been held, applies to the vendor in case of sale. The weight of authority is clearly to this effect. (Browne on Stat. Frauds (2d Ed.), sections 365, 366“; 29
This contention of the respondents, therefore, cannot be sustained for the reasons: (1) That the memorandum constituted an offer merely and thus could be orally accepted; and (2) that the signature, in any event, of respondents was sufficient and binding, as upon acceptance all obligations became mutual. The contention that there is no express allegation in the complaint that the memorandum was delivered, and that for that reason the complaint is vulnerable to a general demurrer, is not tenable. The allegation that the agreement was' “entered into,” it has repeatedly been held, is sufficient to admit proof of delivery if denied. From such an averment a delivery may be implied. (Bliss on Code Pleading [2d Ed.], section 176; Prindle v. Caruthers, 15 N. Y. 425; Keteltas v. Myers, 19 N. Y. 231; Douthit v. Mohr, 116 Ind. 482, 18 N. E. 449.) It is further argued that the complaint is insufficient because there is no allegation that the offer made by respondents was accepted by appellants. If this be so, then, of course, there would be no enforceable contract, and hence no cause of action. As we view the complaint, this contention finds no support in the light of the allegations therein contained. The complaint starts out with the allegation that the parties at a certain time and place “entered into a certain written contract,” and then sets forth a copy thereof. This is followed by allegations that appellants at all times were able, ready, and willing to pay respondents the price of the seed mentioned in the memorandum, and were at all times able, ready, and willing to perform all the conditions upon their part to be performed, and that they had demanded delivery of the seed, and that it had been refused. Having recourse to the memorandum set out in the complaint, it appears therefrom that the same was but an offer of sale. When appellants, therefore, upon a trial of the case, should offer the memorandum as proof of the agreement pleaded, the memorandum itself would not
Upon the question as to the rights under offers such as the one in question here, and when and how they become effective and binding, see the following authorities: 1 Page on Contracts, section 38, and cases cited; 1 Beach on the Modern Law of Contracts, sections 35-40; Bishop on Contracts, section 321 et seq.; Pomeroy on Contracts, section 58 et seq., Frue v. Houghton, 6 Colo. 318-324; Sherwin v. Cash Register Co., 5 Colo. App. 162, 38 Pac. 392; Laclede Constr. Co. v. Tudor Iron Works, 69 S. W. 384, 169 Mo. 137; Justice v. Lang, 42 N. Y. 493, 1 Am. Rep. 576; Justice v. Lang, 52 N. Y. 323; Sellers v. Greer, 172 Ill. 549, 50 N. E. 246, 40 L. R. A. 589. There is also another view, however, upon which the complaint may be sustained. When a complaint is attacked by a general demurrer, it must be tested as to sufficiency in the light of all the facts stated, and the inferences naturally arising from such facts. The appellants further alleged in the complaint that they, “on the 7th day of November, 1903, and at divers other times prior thereto/' demanded a delivery of the seed from the respondents. They also allege that ten days from the making of the memorandum was a reasonable time in which to deliver the seed, and that respondents could have delivered the same within that time had they chosen to do so. In order to avoid the inference that a demand for the seed constituted an acceptance (since a demand would necessarily imply that the thing demanded was or would be accepted) it is argued that since appellants fixed ten days as a reasonable time in which to deliver the seed, therefore demand subsequent to that time would be beyond a reasonable time in which an acceptance could have been made. Here again all the allegations must be given effect as against a general demurrer. No doubt the appellants had the right to demand delivery of the seed at any time after acceptance of the offer. They also, in the absence
In addition to the authorities cited above, there are at least two cases precisely in point. Bowers v. Whitney, 88 Minn. 168, 92 N. W. 540, presents a case where the memorandum sued on was as follows: “I hereby agree to deliver at Gable eight hundred bushels of No. 2 rye to Bowers Bros, on or befoi’e September 25, 1901. Brice to be 36 cents per bushel. [Signed] M. C. Whitney. Leland Coates. Bowers Bros., Witnesses.” The plaintiffs in that case alleged the making of the memorandum, setting forth a copy in the complaint, and, in addition, alleged that they had agreed to pay for the rye, a demand for the rye, and a refusal to deliver the same, and prayed for damages. The defendant denied the making of the memorandum sued on. At the trial, the plaintiffs offered the writing in evidence, and, in connection therewith, offered to prove that they, at the time the memorandum was made, accepted its terms, and that they had demanded delivery of the rye, which was refused. The trial court sustained an objection to the offer to prove on the ground that the memorandum was not complete in itself, and that it could not be aided by parol evidence in order to make it complete, and dismissed the action. The Supreme Court, however, held that the evidence offered was proper, and reversed the judgment of dismissal. The case of Wemple v. Knopf, 15 Minn. 440 (Gil. 355), 2 Am. Rep. 147, is the same in its facts and rulings as the Bowers Case, supra. The only difference between those two cases and the one at bar is that the memorandum passed on in those cases fixes the time of delivery, while in the case at bar no time limit is given. In the absence, however, of such a limit, the law fixes a reasonable time, and this supplies the thing omitted in the memorandum in the case at bar. There is no difference in principle between the two cases and the one at bar, and we think they aro based on sound principles of law. The cases cited by counsel for respondent, not already noticed, do not affect the principle of law announced in this opinion. McDonald v. Bewick, 51 Mich. 79, 16 N. W. 240, is based upon the fact that in
It follows from the foregoing views that the court erred in sustaining the demurrer. The judgment is reversed, and the case remanded, with directions to the court below to overrule the demurrer, to permit the respondents to answer, if they are so advised, and to proceed with the case in accordance with the views contained in this opinion. Costs to appellant.
Dissenting Opinion
(dissenting).
In my opinion, the complaint in this case does not state facts sufficient to constitute- a cause of action, and hence the trial court did not err in sustaining the demurrer interposed by respondents, and I therefore dissent from the result arrived at in the foregoing opinion written by Mr. Justice Erice.
Appellants base their right for a recovery in this action upon the alleged breach by respondents- of a “certain written contract,” and not upon a contract partly in writing and partly oral. The allegations of the complaint wherein the terms of the alleged contract are pleaded are as follows: “The said plaintiffs and defendants entered into a, certain written contract in words and figures following to wit: Oct. 16, ’03. I hereby sell and agree to deliver to Bailey & Sons, a.t their place of business in Logan City, Utah, 125 bushels of lucem seed, at the rate of 10 3-4 cents per pound after said seed is recleaned; said seed to be in said D'avid and Andrew Leish-man’s sacks. [Signed] Andrew Leishman. David Leishman. That thereby, and by the terms of the said contract,
I concur in the prevailing opinion wherein it is said:
“For the purposes of this decision, we will assume the contention of counsel for respondents that the memorandum sued on is a mere offer to sell made by respondents to appellants. As an offer, therefore, it was subject to acceptance by appellants, and was not intended as a complete contract, and would not be such unless and until acceptance.”
And, as stated in the opinion, such acceptance could be made either orally or in writing. I also agree with that part, of the opinion which reads as follows:'
“It is further argued that the complaint is insufficient because there is no allegation that the offer made by respondents was accepted by appellants. If this be so, then, of course, there could be no enforceable contract, and hence no cause of action.”
But I fail to find any allegation in the complaint which alleges an acceptance by appellants, or any allegation from which an acceptance can be inferred within the ten days which appellants by the allegations of their complaint fixed as a reasonable time for respondents to have delivered'thA seed from the date of their written offer.. In fact, counsel for appellant, in their oral argument of the case before this court, did not contend, nor do they claim in their printed briefs, that the complaint in terms alleges an acceptance, or that there was in fact an acceptance by appellants. Their contention is that the written offer of respondents constituted a complete contract. In their brief they say: “Defendants not only gave their word but also their written contract signed by both of them to deliver this seed at a specific price and place. Herein we find all the terms of a good contract.” And again, “Leishman Brothers are the parties to. be charged, and
Nor do I think that the recital in the complaint, “that plaintiffs, on the 'Tth day of November, 1903 (twenty-one days after date of respondents’ offer), and at divers other times prior thereto, demanded of said respondents that they deliver the said seed in accordance with the terms of said agreement,” is a sufficient allegation of an acceptance to complete the contract, when considered in connection with the preceding paragraph of the complaint which fixes ten days as a reasonable time for respondents to have delivered the seed from the date of .their offer. To hold that this demand was sufficient to put respondents in default, and make them liable for breach of contract, would be in effect holding that respondents were legally bound to deliver the seed before their offer to sell was accepted by appellants. By an examination of the case of Bower v. Whitney, 88 Minn. 168, 92 N. W. 540, cited in support of the conclusions reached by my Brethren in the prevailing opinion, it will be.seen that the complaint in that case, among other things, alleged that “defendant agreed to sell and deliver to plaintiffs . . . eight hundred bushels of rye, at the agreed price thirty-six cents per bushel, which the plaintiff agreed to pay therefor.” (The emphasis is mine.)