Cummings v. Dennett, 26 Me. 397

Cummings v. Dennett

26 Me. 397 | Me. | 1847

The opinion of the Court was drawn up by

Whitman C. J.

The plaintiff relies upon a special contract, entered into between him and the defendant, in which the defendant in writing, agreed to furnish the plaintiff with one hundred backs and strips for belting, to be delivered in Portland by the first day of December then next, the date of the writing being September 6, 1845, at eighteen cents per pound. The plaintiff, on the first of December following the date of the writing, tendered to the defendant, at his tannery in Portland, the amount the articles would come to at the price agreed upon, and demanded them of him; to which he replied that “ he had not the leather.” He did not deny that he had made such an agreement; or then pretend that it was not mutually obligatory ; or that the plaintiff had not agreed to take and pay for the articles upon their being furnished according to promise. He now sets up, however, in defence, that the written agreement does not show, that the plaintiff did so agree ; and, therefore, that there was no consideration for the promise he had made; and, moreover, that there being no written promise on the part of the plaintiff to accept and pay for the articles, at the time specified, and therefore no mutuality of obligation, the statute of frauds will prevent his being liable in this action.

If the defendant’s promise can be regarded as having been made without consideration, it will be immaterial to inquire whether it is within the statute of frauds or not. It is not essential, at common law, that the consideration for a promise in writing should appear in the writing itself. Parol evidence of it will be admissible. Bean v. Burbank, 16 Maine R. 460. To ascertain whether there was a good consideration, not only the writing, but all the circumstances connected with it must be taken into view. Written contracts are often drawn in *400haste, by parties not well skilled in such matters; and it not unfrequently becomes difficult to ascertain their meaning. One part of the contract may be reduced to writing, and another be left to inference ; and there are sometimes inconsistencies, apparently, between the different parts of the same writing. Resort must be had in such cases to the obvious scope and design of the parties, and to the subject matter to which it has reference, and even to the situation of the parties contracting. The object in every case must be to ascertain the real intention of the parties. When that is ascertained it must govern: as where one says in a memorandum of an agreement to sell land, “ I have bargained and sold the same,” &c. the meaning is, that he will do that, which shall perfect a sale thereof. Atwood v. Cobb, 16 Pick. 227.

In the case before us, the writing contains the promise of one party in very explicit terms; and the question is whether a corresponding promise is or is not ascertainable, as having been made by the other party, and thereby constituting a good consideration for the other. The agreement by the defendant was absolute to furnish, at a certain time, place and price, certain articles. The agreement was in writing, which was taken and carried away and held by the plaintiff. The defendant, it would seem, was a manufacturer of such articles, as the tender was made at his tannery, and he is called in the writ, and without objectioñ by him, -“a tanner.” They were to he furnished at a future day ; (implying that they were not then on hand ;) and, therefore, may be believed not to have been on hand at the time of the contract. It did not occur to the defendant at the time the tender was made to pretend, that there had not been a mutual and obligatory contract, by one party to furnish, and by the other to pay for the articles. The tender was made for articles the defendant “agreed to have done” for the plaintiff; and the defendant did not deny that he had so agreed. Here then there was at least matter for the consideration of the jury, from which to find a mutual and obligatory contract between the parties.

The question then arises, whether the contract was void under the statute of frauds; and this depends on whether *401the statute applies to a case like the present; and if it does, then, whether the writing relied upon is in conformity to the requirements of that statute.

As to the first branch of the inquiry, it does not appear, explicitly, whether the application of the plaintiff to the defendant was to him as a manufacturer of the articles in question : although there is reason to apprehend that such may have been the case, and a jury might so find. It is very clear, that, if application is made to a mechanic or manufacturer for articles in his line of business and he undertakes to prepare and furnish them in a given time, such a contract, though not in writing, is not affected by the statute. Mixer v. Howarth, 21 Pick. 205; Spencer & al. v. Cone & al. 1 Metc. 283. On a new trial the evidence upon this point may, if necessary, be more explicit.

If the application was to the defendant for goods on hand, then it will, perhaps, become important to ascertain whether the writing in question was in conformity to the requirements of the statute. The promise, on the part of the defendant., was quite intelligible, and the consideration expected for the promise is stated. And we have before seen, that a jury might well find, from the circumstances, that the plaintiff promised to take and pay for the articles to be furnished ; and we have before seen that the law does not require that the party seeking the fulfilment of a promise in writing should show that the engagement on his part, forming the consideration, was in writing. And to this point, see Lunt & al. v. Padelford, 10 Mass. R. 230; Train v. Gold, 5 Pick. 380. It may not, however, be necessary now to decide that question. On a new-trial it may not arise.

Nonsuit taken off, and a new trial granted.