20 F. 667 | U.S. Cir. Ct. | 1884
One Berry, representing the defendant, a manufacturer of chairs, either as salesman or as a solicitor of orders, bargained to the plaintiff, a dealer in chairs at Baltimore, Maryland, two lots of unfinished chairs at an agreed price, tó be delivered there, amounting respectively to §4,274 and §2,458, and by manifold writing filled duplicates of blank orders for each, which were substantially alike, and when filled, read: “Messrs. C. P. Harris M’f’g Co., order Mo. —. Send to C. W. S. Banks, of 59 South St., Baltimore, Md.; terms, net 80 days; freight allowed. M. D. Berby, Agent.” Then followed a list of goods, with prices, and “to be shipped after two months from date of this order,” and the orders were signed at the foot by the plaintiff. One of each he left with the plaintiff, the other he sent to the defendant, and a copy of the written parts bo kept himself. The defendant received the orders, refused to send the goods because the prices were so low, and the plaintiff brings this suit for the non-delivery.
A principal question is whether this order is a sufficient memorandum in writing of the bargain to charge the defendant, within the statute of frauds (29 Car. 2, c. 3) still in force in Maryland. There is no real question but that those instruments sufficiently set forth the terms of the sale, if they show a sale, nor but that the name off the agent is sufficiently signed to the memorandum, if it is a memorandum of a bargain of sale and he had authority to bind the defendant to a contract of sale. Drury v. Young, 58 Md. 546. The memorandum must set forth on its face enough to gather a contract of sale from, as against the party to be charged with the consequences of such a contract in the action. Egerton v. Mathews, 6 East, 307; Cooper v. Smith, 15 East, 103; Bailey v. Bogert, 3 Johns. 399. This memorandum -appears to be of an order, and not of a sale, and would, so far as it shows for itself, fail to make out a sale without acceptance of the order. Chit. Cont. 349. The acceptance of the order might be by a delivery or forwarding of the goods, according to its terms, so as to charge the purchaser with the price without ae-
There is nothing from the defendant to help this memorandum out at all. (There was a letter to the plaintiff after the order was received, hut it treated the memorandum as an order, and did not in any way recognize a sale. Cooper v. Smith, supra. In Drury v. Young, the memorandum was, “sold W. H. H. Young,” etc. No case has been shown or observed in which the writing did not show a sale, or that from which a sale could be gathered, where it is held sufficient. In this instrument the name of the defendant itself appears, put there by its agent, but as being requested to send the goods, not as selling them. The name of the agent appears, but only as to ordering the goods. If he joined as agent in the order, it would be as agent of the plaintiff, for that comes from him to the defendant, and does not proceed at all from the defendant. If he was authorized he could accept the order in writing, and thus the whole would show a bargain of sale. But the acceptance is lacking, and the memorandum is of only one side of a bargain. The agent has testified to the bargain, and that the writing delivered to the plaintiff was intended to show it. This would be well enough if the writing did show it. Parol evidence is admissible to show the meaning of trade expressions and to apply the writing to the circumstances, but not to contradict the writing, nor to supply any part required by the statute to be in writing. To hold that what is on its face an order may be shown to be intended as a sale, or that an acceptance of an order necessary to make a sale may be supplied by parol, would be to disregard the plain provisions of the statute. In any view of Berry’s authority, the statute cuts off this, action.
Judgment for defendant.
The language of section 17 of the statute of 29 Oar. I. e. 8, is as follows: “And bee it further enacted by the authority aforesaid, that from and after the said fower and twentyeth day of June noe contract for the sale of any goods, wares, or merchandises for the price of ten pounds sterling or upwards shall be allowed to be good except the buyer shall accept part of the goods soe sold and actually receive the same, or give something in earnest to hind the bar-gaine or in part of payment, or that some note or memorandum in writeing of the said bargains be made and signed by the partyes to be charged by such contract, or their agents thereunto lawfully authorized. ” The principal case raises the main question under this section of the act, what is a sufficient “note or memorandum in writing” to satisfy the statute? And its consideration may conveniently be divided into (I.) the form of the memorandum, (II.) the contents, and (III.) the signature.
I. The Eorm of the MEMORANDUM. Lord Ellenboroug-h said that “anything under the hand of the party expressing that he had entered into-the agreement set out therein” was sufficient.
“The statute of frauds does not require the contract itself to be in writing, but a memorandum of it, and a memorandum properly signed of a by-gone contract is quite sufficient.”
It thus appears that the memorandum is not the contract, but only the evidence of it, and this is true as to both the fourth and seventeenth sections.
In Sanborn v. Flagler
But if the alleged memorandum was not at the time intended to express a contract or an offer for acceptance, so as to complete the contract, it will not satisfy the requirements of the statute; as, where an agent sent a circular to tenants announcing the landlord’s intention to grant new terms at an increased rental, and inclosing the draft of an agreement which the tenants signed, it was held that as the circular was not a contract, but a mere declaration of intention, and the landlord did not sign the agreement, the statute was not satisfied.
A curious question, already touched upon in connection with admissions in pleadings, arises upon tho effect of a letter or memorandum referring to a previous contract, which by the very letter itself is repudiated. In Bailey v. Sweating
The memorandum must show a completed contract; it is not sufficient if there appear to, be a Jus deliberandi or locus pmnitenliw,
Apart from the question of the signature, the memorandum must contain the'names of the parties to the contract, or at least sufficient to identify them. It is not necessary that their full names should be set out — their initials may :serve for identification; neither is it necessary that the names of the real parties in interest should appear, if they were acting through agents, and the memorandum identifies the agent, and the agency can be proven.
In Salmon Falls Manuf'g Co.v. Goddard
“Sept. 19th. W. W. Goddard. 12 mos.
“300 bales S. F. drills, -.7£
“100 cases blue do., ■■ - - - 8|
“Credit to commence when ship sails. Not after Dec. 1st. Delivered free •of charge for truckage. The blues, if color satisfactory to purchasers.
“B. M. M.
“W. w. a.”
This was accompanied by a bill of parcels, sent shortly after to defendants. Suit was brought by the Salmon Falls Manufacturing Company to recover the price of the goods named in the memorandum. It appeared that the firm of Mason & Lawrence were the agents of the plaintiffs in Boston, and that the memorandum was signed with the initials of E. M. Mason, one of the firm, for the firm, and it was held (two judges "dissenting, however) that the plaintiffs could recover.
It will even suffice in some cases that the parties should be styled by some designation, if the identification can be proven.
III. The Signature. The seventeenth section of the statute provides that the note or memorandum shall “be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized. ” In
(1) There is no difference between the fourth and seventeenth sections of the statute, caused by tho use of the word “party” in the one and “parties” in the other; in either case, in the absence of special provisions in local statutes, the memorandum need be signed only by the “party” to be charged.
(2) In Sanborn v. Flagler
(3) It is quite immaterial in what part of the memorandum the signature may be, IT it sufficiently appear that it was intended to govern the whole agreement which, it authenticates;
Before closing this note, the annotator must add an acknowledgment of the assistance which he has received from N. Dubois Miller, Esq., of the Philadelphia bar, in the preparation and arrangement of the points of law which have just been considered. Heery Reed.
Philadelphia, Pa.
Shippey v. Derrison, 5 Esp. 191.
Bell v. Bruen, 1 How. 169. See, also, Moore v. Hart, 1 Vern. 114; Boys v. Ayerst, 6 Madd. 323; Hurley v. Brown, 98 Mass. 546; McCarthy v. Kyle, 4 Cold. 354; Sheid v. Stamps, 2 Sneed, 172; Atwood v. Cobb, 16 Pick. 230; Cadwalader v. App, 81 Pa. St. 210; Wood v. Davis, 82 Ill. 312; McConnell v. Brillhart, 17 Ill. 360; Cushman v. Burritt, 14 N. Y. Wkly. Dig. 59, (S. C. N. Y.;) Jenkins v. Harrison, 66 Ala. 355; Crockett v. Green, 3 Del. Ch. 471; Scarritt v. St. John’s M. E. Ch. 7 Mo. App. 178-9; Patton v. Rucker, 29 Tex. 407; Martin v. Weyman, 26 Tex. 466; Cosack v. DeScondres, 1 McCord, 425; Shoofstall v. Adams, 2 Grant, (Pa.) 212; Sherburne v. Shaw, 1 N. H. 159; Parks v. Brinkerhoff, 2 Hill, 663.
Pollock, C. B., Bluck v. Gompertz, 7 Exch. 867.
Lerned v. Wannemacher, 9 Allen, 412; Mirzell v. Burnett, 4 Jones, Law, 252; Bradford v. Roulston, 8 Ir. C. L. R. 472.
Reed, St. Frauds, § 328.
McBlain v. Cross, 25 Law T. (N. S.) 804; Murphy v. Thompson, 28 U. C. C. P. 233; Coupland v. Arrowsmith, 18 Law T. (N. S.) 755; Dilworth v. Bostwick, 1 Sweeny, 588; Kinghorne v. Montreal Tel. Co. 18 U. C. Q. B. p. 66, and Reed, St. Frauds, § 339.
Reed, St. Frauds, §§ 328, 329.
Cocking v. Ward, 1 C. B. 867.
Hart v. Hart, 3 Del. 595; Argenbright v. Campbell, 3 Hen. & M. 159.
Wiley v. Mullins, 22 Ark. 394; Maddox v. Rowe, 23 Ga. 433; Hiatt v. Williams, 72 Mo. 215.
Archer v. Scott, 17 Grant, 249.
Reed, St. Frauds, § 337.
Frazer v. Buder, 3 Law & Eq. Rep. 622.
Cooth v. Jackson, 6 Ves. Jr. 12; Trice v. Pratt, 1 Dev. & B. Eq. 628.
Scott y. Avery, (Dom. Proc.) 20 Monthly Law Rep.; Fell, Guar. 61; Barkworth v. Young, 4 Drew, 9; 26 L. J. Ch. 153.
Ives v. Hazard, 4 R. I. 14; Ivory v. Murphy, 36 Mo. 539; Packard v. Putnam, 57 N. H. 50; Collins v. Decker, 70 Me. 23.
Jackson v. Oglander. 2 H. & M. 472.
Higginson v. Clowes, 15 Ves. 521; Sandilands v. Marsh, 2 Barn. & Ald. 680; Gaston v. Frankum, 2 De G. & S. 567; Horsey v. Graham, 18 Wkly. Reg. 141; God
Scarritt v. St. John’s M. E. Church, 7 Mo. App. 178.
Neufville v. Stuart, 1 Hill, Ch. 166; Eargood’s Estate, 1 Pears. 400.
Oakman v. Rogers, 120 Mass. 214; Reed, St. Frauds, § 398 et seq..
35 Mich. 435.
Irving v. Merrygold, 3 U. C. Q. B. 273; Patterson v. Underwood, 29 Ind. 610; Riley v. Farnsworth, 111 Mass. 153.
9 Allen, 475.
See, also, Simonson v. Kissick, 4 Daly, 146; but, contra, Corbitt v. Salem Gas Go. 6 Or. 405.
Archbold v. Lord Howth, 1 Ir. Rep. C. L. 619; 18 Ir. Jur. 88; and to the same effect, Kurtz v. Cummings, 24 Pa. St. 37; Richards v. Porter, 6 B. & C. 437; Cooke v. Tombs, 2 Anstruther, 424.
9 C. B. (N. S.) 857.
Buxton v. Rust, L. R. 7 Ex. 280.
See, also, Wilkinson v. Evans, L. R. 1 C. P. 410; Hicks v. Cocks, 67 Law T. 386; McFarson’s Appeal, 11 Pa. St. 509; Jackson v. Lowe, 1 Ring 12; McCaul v. Strauss, 1 Cab. & Ell. 106; Johnson v. Trinity Church, 11 Allen, 123.
6 Ont. App. R. 108.
L. R. 1 C. P. p. 5.
Williams v. Morris, 95 U. S. 456.
Fowle v. Freeman, 9 Ves. 354; Hamersly v. De Biel, 12 Clark & F. 73; Jones v. Victoria Graving Dock Co. L. R. 2 Q. B. Div. 321; Bonnewell v. Jenkins, 47 L. J. Ch. 758; McFarson’s Appeal, 11 Pa. St.
L. R. 7 Ch. Div. 29.
See, also, Ridgway v.Wharton, 6 H. L. Cas. 255; Wharton v. Stoutenburgh, 35 N. J. Eq. 274; and Tawney v. Crowther, 3 Bro. C. C. 318.
Atwood v. Cobb, 16 Pick. 230; Hawkins v. Chace, 19 Pick. 504; Greaves v. Ashlin, 3 Camp. 316; O’Donnell v. Leeman, 43 Me. 160; Ide v. Stanton, 15 Vt. 689; Smith v. Jones, 7 Leigh, 165; Lockett v. Mifflin, 2 Ex. Ch. 92; Ford v. Yates, 2 Man. & G. 559. But see, also, Paul v. Owings, 32 Md, 406; Hopkins v. Roberts, 54 Md. 316.
See, on the same point, Bourdillon v. Collins, 24 Law T. R. (N. S.) 345; Barry v. Coombe, 1 Pet. 651; Mordecai v Gadsden, 2 Speer 563; Cadwalader v. App. 81 Pa. St. 210; Irvine v. Dane, 2 Ir. Jur. 210; Forbis v. Shattler, 2 Cinn. Rep. 95; Lerned v. Wannemacher, 9 Allen, supra; Cossitt v. Hobbs, 58 Ill. 231; Walsh v. Barton, 24 Ohio, 39.
Hood v. Ld. Barrington, L. R. 6 Eq. 221; Commins v. Scott, L. R. 20 Eq. 16.
Reed, St. Frauds, § 407, and the cases therein cited.
Morton v. Copeland, 16 C. B. 535.
Morin v. Mrtz, 13 Minn. 192, (Gil. 180;) Egerton v. Matthews, 6 East, 308; Liverpool Borough Bank v. Eccles, 4 H. & K. 143; Bank of British America v. Simpson, 21 U. C. C. P. 357; Kizer v. Locke, 9 Ala. 269; Vassault v. Edwards, 43 Cal. 458; Weldin v. Porter, 4 Houst. 239; Linton v. Williams, 25 Ga. 391; Perkins v. Hadsell, 50 Ill. 220; Cook v. Anderson, 20 Ind. 15; Balch v. Young, 23 La. Ann. 272; Getchell v. Jewett, 4 Greenl. 366; Williams v. Robinson, 73 Me. 195; Dresel v. Jordan, 104 Mass. 407; Scott v. Bush, 26 Mich. 420; Marqueze v. Caldwell, 48 Miss. 30; Luckett v. Williamson, 37 Mo. 395; Nat. Fire Ins. Co. v. Loomis, 11 Paige, 431; Mirzell v. Burnett, 4 Jones, (N. C.) 249; Johnston v. Cowan, 59 Pa. St. 275; Sheid v. Stamps, 2 Sneed, 172; Brandon Co. v. Morse, 48 Vt. 326; Capehart v. Hale, 6 W. Va. 550.
9 Allen, 474.
See, also, Chicester v. Cobb, 14 Law T. (N. S.) 433; Phillimore v. Barry, 1 Camp. 513; but see, also, Sweet v. Lee, 3 Man. & G. 453.
Palmer v. Stephens, 1 Denio, 471; Brown v. Butchers’ Bank, 6 Hill, 413; Weston v. Myers, 33 Ill. 482; McFarson’s Appeal, 11 Pa. St. 503; Madison v. Zabriskie, 11 La. 251; Helshaw v. Langley, 11 L. J. Ch. 17.
2 Maule & S. 286.
13 Allen, 358.
Torrett v. Cripps, 27 W. R. 706; Drury v. Young, 58 Md. 517; Penniman v. Hartshorne, 13 Mass. 87; Sayers v. Patterson, 2 W. N. C. 334; Johnson v. Dodgson, 2 Mees. & W. 653; Bleakley v. Smith, 11 Sim. 150; Saunderson v. Jackson, 2 B. & P. 239; Schneider v. Norris, 2 M. & S. 288; Reed, St. of Frauds, § 385, note c.
Caton v. Caton, L. R. 2 H. L. 135
Wright v. Dannah, 2 Camp. 203; Bailey v. Ogden, 3 Johns. 418; Hazard v. Day, 14 Allen, 494; Rayner v. Linthorne, 2 C. & P. 124; Johnson v. Buck, 35 N. J. Law, 340; Marx v. Bell, 48 Ala. 499; Strong v. Dodds, 47 Vt. 354.
Lusk v. Hope, 17 Low. Can. Jur. 19; Colvin v. Williams, 3 Har. & J. 38; Sale v. Darragh, 2 Hilt. 196; Hinckley v. Arey, 27 Me. 363; Spyer v. Fisher, 37 N. Y. Super.100; Pringle v. Spaulding, 53 Barb. 17; Hicks v. Hawkin, 4 Esp. 114; Glengal v. Barnard, 1 Keen, 788; Rucker v. Cammeyer, 1 Esp. 105; Butler v. Thompson, 92 U. S. 412.
McBlaine v. Cross, 25 Law J. (N. S.) 804; Shaw v. Rudd, 8 Pick. 12; Chapman v. Portridge, 5 Esp. 257; Lawrence v. Gallagher, 73 N. Y. 613.