(after stating the facts). We shall not attempt an analysis of the cases cited by сounsel; they have all been examined, but to consider and distinguish them all would render this opinion unnecessarily prolix. We should note, however, that some of the rules laid down in some оf the earlier cases have been modified by the “uniform sales act” (3 Comp. Laws 1915, § 11832 et seq.).
It is insisted that the statute of frauds has not been complied with. The sufficiency of the substance of thе memorandum of July 2d is not questioned, nor can it be; it was admitted thаt it was signed by the defendant; it was signed by the agent of the plaintiff. By the express terms of the statute the signing by an agent is authorized. 3 Cоmp. Laws 1915, § 11835;
*258
Bay State Milling Co.
v.
Saginaw Baking Co.,
It is insisted that inasmuch as the so-called сonfirmation or acceptance of July 10th
differed in
terms from thе memorandum of July 2d there was no binding contract between thе parties. If the memorandum of July 2d had only been signed by defendаnt and had been but an order, a different question would be prеsented, and there would be much of merit in the contention of defendant’s counsel; but, as we have pointed out, the memorandum of July 2d was a valid, binding contract between the parties. The so-called confirmation or acceрtance was but an offer to change the terms of the аgreement and was not accepted by defendant. See
Shepherd Hardwood Products Co.
v.
Gorham Bros. Co.,
It is insisted that there was no tender of performance on the part of the plaintiff so as to place defendant in default. We have quoted but a few excerpts from thе correspondence which passed between the parties. Taking it as a whole in connection with the other evidence in the case we do not think it so clear that we may say, as a matter of law, that defendant had waivеd a tender, that a tender was excused. We think a jury would be justifiеd in finding that it would have been but an idle ceremony to make a tender, that it had been waived by the letters and the conduсt of the defendant. The trial judge should have submitted this question to the jury.
The plaintiff was bound to minimize his loss. This is settled law. We have noted the fact the Blue Rose rice matures later than Hondurаs rice. There is no evidence in the case that therе was a market for “futures” but plaintiff’s testimony shows that the rice wаs within his control October 10th and that the market price was thеn about 8 cents and the market ‘was falling. He sold the rice later in the
*259
month for 6V2 cents and this was the price on the last dаy of the month which was the last day of the contract. The trial judge, accepting this figure, directed a verdict for $1,400 and interest. In this he was in error. The market was falling and this fact was well known to plaintiff. It was his duty to do what he could to save the loss.
Beebe
v.
Cullinane,
We have examined the other assignments of error but they do not merit discussion.
For the errors pointed out the case must be reversed and a new trial granted. Defendant will recover costs of this court.