Cunningham v. Williams

43 Mo. App. 629 | Mo. Ct. App. | 1891

Gill, J.

This is an action wherein the plaintiff seeks to recover damages for defendants’ failure and refusal to accept and pay for a lot of wheat alleged to have been contracted for by said defendants through their agent, A. W. Evans. The defense relied upon is the statute of frauds. On the trial in the circuit court plaintiff recovered damages in the sum of $480.26, and defendants appeal to this court.

I. When Evans, the agent, agreed with plaintiff for the purchase of the wheat there was no memorandum in writing made and signed by either party. Evans, however, immediately reported by letter the terms, etc., of the purchase to his principals, these defendants. And they subsequently wrote to Evans in full acknowledgment of the purchase, and instructed Evans to see Cunningham and arrange with him to hold the wheat in his bins till a future day — that they were not ready then to receive it. There was ample memoranda in writing signed by defendants, and their authorized agent, to fill the requirements of the statute. The agreement is sufficiently shown if it appears by different memoranda, or even if in a letter written by the party sought to be charged and directed to a third party. 1 Greenl. on Ev., sec. 268; Moore v. Mountcastle, 61 Mo. 424.

II. Defendants’ counsel, however, with seeming confidence, urges that the writing required by the statute is one signed by both parties to the contract of sale, and unless so signed cannot be enforced against either. The position is not tenable. The memorandum is sufficient if signed by the party to be charged — the party sought to be charged by the suit. Browne on Stat. of Frauds, sec. 365; Mastin v. Grimes, 88 Mo. 478. No distinction is made whether the section reads '■'■party to be charged” or “parties to be charged.” The same construction is adopted. Browne Stat. of Frauds, sec. 365.

This record discloses no error in the action of the trial court. Its judgment is, therefore, affirmed.

All concur.