60 Ind. App. 697 | Ind. Ct. App. | 1916
To determine the questions presented we must
‘Washington, Ind., 2-1-13.
Henderson Elevator Co., Henderson, Ky. Gentlemen: Please make us your best offer on fifteen thousand bushels pure white corn loaded here and on the same basis we sold you last ■ year. This corn is even higher in quality and conditions than that we sold last year. Be sure the price you offer is your best. Yours truly, The Graham Farms. R. A. Graham.’
That on March 22, 1913, the plaintiff made an offer in writing, to purchase ten thousand bushels from defendant, which offer in writing is as follows: * *. *
‘Henderson, Ky., March 22, 1913.
R. A. Graham, Washington, Ind. Dear Sir: Referring to conversation had today with you over the phone we are pleased to confirm the purchase from you of ten thousand bushels white corn in ear 70 lbs. to the bushel at 50 cents f. o. b. your station. Same terms as before, that is we are to furnish a man to weigh the corn and our Mr. R. L. Williams is to examine it before being- loaded. As advised you, just as soon as we can possibly get him there, we will do so. Yours truly, Henderson Elevator Co. W. A. Williams, Gen’l Mgr.’
That on March 25, 1913, the defendant accepted the said written offer of the plaintiff, which acceptance in writing is as follows:
‘Loogootee, Ind. 3-25-13.
Mr. Williams, Henderson Elevator Co., Henderson, Ky. Dear Sir: Please have your Mr.*701 Robert Williams eome down as soon as weather will permit as we want to load this corn out on short order when roads will allow hauling. We are certainly having some flood in this section. With best wishes we are, Yours truly, The Graham Farms, by R. A. Graham, General Manager.’
That the said The Graham Farms was in fact the defendant, and the said R. A. Graham and R. A. Graham, General Manager, being the same person, was the agent of the defendant; that on April 14, 1913, the said R. L. Williams and Robt. Williams, being the same person, examined the corn; that the plaintiff and defendant entered into the agreement, as aforesaid, whereby the defendant agreed to deliver to the plaintiff ten thousand bushels of white corn at fifty cents a bushel f. o. b. at Graham’s station on the Chicago, Eastern Illinois Railroad in Daviess County, Indiana; that the said corn was to be delivered as aforesaid, as soon as cars could be procured in which to load the same, and the plaintiff was to pay therefor on delivery.” The other averments charge performance on the part of appellee and refusal to perform on the part of appellant; that on April 11 and 14, 1913, appellee was ready, willing and able to receive and pay for the corn and so notified appellant. Prayer for damages in the sum of $1,000.
plaintiff in the suit. Newby v. Rogers (1872), 40 Ind. 9, 12; 20 Cyc 272. Where it is sought to enforce a contract alleged to be evidenced by a memorandum sufficient to take it out of the operation of the statute of frauds, or to hold a party liable in damages for a breach of the alleged contract, and .the party against whom liability is sought to be enforced has not signed any memorandum containing the essential elements of the contract, but has signed another instrument or writing in which it is claimed such reference is made to the former as to amount to an adoption and acceptance of the terms thereof, to be sufficient under the
Ibach, C. J., Moran, Caldwell, Shea and Hottel, JJ., concur.
Note. — Reported in 111 N. E. 332. As to when title to goods passes to buyer, see 138 Am. St. 905. As to who must sign note or memorandum of executory contract for the sale of real property or chattels within the statute of fraud see 28 L. R. A. (N. S.) 680; 43 L. R. A. (N. S.) 410. For a discussion of several writings as amounting to a memorandum within the statute of frauds, see 2 Ann. Cas. 293; 19 Am. Cas. 1162; Ann. Cas. 1914 C 1010. As to sufficiency of signature by one party only to memorandum required by statute of frauds, see 3 Ann. Cas. 1036; 13 Ann. Cas. 1121; Aim. Cas. 1912 C 416. As to necessity of pleading the statute of frauds specially where defendant denies contract, see Ann. Cas. 1912 D 46. See, also, under (1) 3 C. J. 779; 2 Cye 689; (2) 3 C. J. 1357; 2 Cyc 987; (3) '3 C. J. 1389; 2 Cyc 999; (4) 3 C. J. 1410; 2 Cyc 1014; (5) 31 Cye 84; (6) 35 Cye 623; (7) 20 Cyc 258; 261; (8) 20 Cyc 254, 258; (9) 20 Cyc 272; (10) 20 Cyc 278; (11) 20 Cye 317; (12) 17 Cye 412; (13) 20 Cyc 312.