Gulfport Cotton Oil, Fertilizer & Manufacturing Co. v. Reneau

48 So. 292 | Miss. | 1909

Fletcher, J.,

delivered the opinion of the court.

On the 20th day of April, 1907, appellee entered into a verbal contract with appellant, acting by one Van Winkle, its president, to take charge of the company’s oil mill in Gulfport as superintendent of the operating department. Appellee held himself out as a skilled and experienced man in such matters, and Van Winkle agreed to pay him an annual salary of $2,500; the term of service to begin on April 24th and, according to appellee’s contention, to continue for one year. There were certain other inducements and representations dealing with appellee’s status and privileges, in case the plant should be removed to Columbia, which we need not here notice in detail.. Appellee on the 24th of April entered upon the discharge of his duties according to the terms of his contract, and was shortly thereafter discharged by Van Winkle without just cause. He was paid for the short time during which he worked, reduced his damages as much as possible, as he was bound to do under the law, and brought suit for the difference between what he had been able to earn during the year and the $2,500 which Van Winkle had promised to pay him. Under a peremptory instruction from the court, Beneau was given judgment for $1,-350, and this amount is admittedly correct, provided any liability at all exists.

It will be observed that the contract was a verbal one, made on April 20th, to begin on April 24th, and to continue for one year, and is, therefore, unless affected by the letters to be hereafter adverted to, within the inhibition of that clause of the statute of frauds which provides that an action shall not be brought whereby to charge a defendant or other party upon any agreement which is not to he performed within the space of one year from the making thereof, unless the promise or agreement.upon which such action may he brought, or some memorandum or note thereof, shall he in writing, and signed by tbe party to be charged therewith. Indeed, tbe record before us contains tbe following recital: “It is admitted by the plaintiff tbat the contract testified to by the plaintiff is within the statute of frauds and non-enforceable in this state, unless the letters filed as exhibits to the declaration in said case and the letters introduced in evidence in this case ai’e sufficient memorandum to take the same out of the operation of the- statute of frauds, together with any competent oral evidence introduced in said case.”

It will thus he seen that the case turns entirely upon the question whether the letters introduced, taken together, contain such a memorandum or. note of the contract as will satisfy the statute. The letters referred to were written under these circumstances: After appellee had been discharged, he addressed a letter to Yan Winkle, protesting against the treatment he had received, explaining the cause of the unsatisfactory condition of the product of the mill, and reminding Yan Winkle of the fact, and at least some of the terms, of the contract. This letter was dated May 18th, and, among other things mentioned, Henean refers to the fact that he had made no misrepresentation when he had held himself out as thoroughly understanding the oil mill business. The letter then recites: “My contract with you was fixed by the year at a stipulated salary of $2,500 by the year, and you offered as a further inducement that, after removing the plant to Columbia, you would malm it more interesting to me by letting me take stock in the business.” On May 20th Yan Winkle addressed a letter to Heneau, which does not in so many words acknowledge receipt'of Reneau’s letter, hut does discuss the questions raised by Heneau. Among other things mentioned in this letter is this expression: “As for the talk I had with you when you applied for the position, I expected much from you. That is why I offered you a largo salary.”

It is insisted on behalf of the appellee that these two letters,. taken together, satisfy tke statute, and on bekalf of tke appellant tkat they come far short of doing so. Appellant’s attack upon the sufficiency of these letters may be said to have three aspects: First, tkat the letters cannot be connected, since there is no direct reference in one to tke other; second, tkat, if considered together, tkey do not set out all tke terms of tke contract, so as to render unnecessary any resort to parol evidence; third, tkat tke letter signed ky Van Winkle does not sufficiently show tke author’s assent to and adoption of the statements made in Keneau’s letter.

We do not think it necessary in this case to devote muck time to tke first two points. Suffice it to say tkat we think Van Winkle’s letter bears suck internal evidences of having been written in reply to Iteneau’s tkat their connection sufficiently appears, although there is no express acknowledgment in tke one of tke receipt of tke other. We observe; on tke second ground, tkat there is some force in the contention tkat the letters, when taken together, do not furnish a complete memorandum of tke contract, since nothing is better settled than tkat tke writing must include all tke material features of tke agreement, so tkat no resort to parol testimony is necessary, further than to show the situation of tke parties and the application of tke terms employed in tke writing to tke subject-matter under consideration. It may well be doubted whether tkese letters measure up to this requirement; but we do not feel called upon to decide this question.

We come to tke third, and, as we think, controlling, feature of this case. Of course, by tke very terms of tke statute tke memorandum must be signed by tke party to be charged. In this case, before appellant can be held, it must appear tkat Van Winkle has approved, assented to, and adopted as his own the statements made in Eeneau’s letter as to tke terms of the contract. We, of course, readily assent to tke well-understood principle tkat the memorandum may consist of several distinct writings, provided tkey are so related that tke particular paper signed by the party to be charged can be held to be an approval of other documents in which the terms of the contract are set forth, even though such other writings are signed by others. The reports abound in eases of this sort. But the question here is whether the case at bar falls within this principle. It must be remembered that these letters are written after the breach of the contract. This fact is of value, not because as a matter of law the memorandum must be executed before the making of the contract, or contemporaneous therewith, for the authorities are well enough agreed that the memorandum may be executed after the broach, but as an important factor in determining what effect shall be given to the language employed. We can readily understand that, when parties are engaged in negotiating for a contract, any reply which one may make to a proposal of the other must be deemed as responsive thereto, since the reply marks a step either forward or backward in the progress of the negotiation. But it is a different matter when a contract already made and breached is sought to be confirmed by an interchange of letters. In such a case, when the one not sought to be charged states the terms of the contract, the other must manifest his assent thereto in some manner which clearly evidences his acquiescence in the statement. We are not to be understood as holding that he must sign with the intent to charge himself under the statute of frauds. We agree that his intention is immaterial. But he must adopt his adversary’s statement.

We cannot think the letter written by Van Winkle under dato of May 20th measures up to this requirement. Beneau’s letter, we may concede, states the contract. To' this Van Winkle merely replies that, “as for the talk I had with you when you applied for the position,” etc. Can this be held as the equivalent of saying, “ I agree that you have stated all the terms of the contract correctly?” We think not. True, Van Winkle enters no specific denial; but he was not called upon to deny. Had he made no reply to the letter, he would not have been bound. What he did sign does not show his assent to the terms stated by Reneau. It can moan nothing more than that, conceding what Reneau said to be true, he (Yan Winkle) had not secured the results which he expected. It neither affirms nor denies the correctness of Reneau’s declaration. It does no more than to waive his version aside, without committing the writer to its terms. It refers to “a talkbut it does not say that “you have represented this ‘talk’ correctly.” It cannot, for the purpose of satisfying the statute of frauds, be given the effect of a plea in confession and avoidance; nor can a person bring himself within the statute by conduct such as would operate as an estoppel in many other cases. In this ease the statute is far from being satisfied.

It does not with sufficient certainty appear that Yan Winkle assented to the terms of the contract, and we cannot enforce it. We are content with the authorities cited by counsel, and do- not reproduce them here.

Reversed, and cause dismissed.