238 Mass. 445 | Mass. | 1921
This is an action of contract to recover damages for failure of the defendant (who carried on business under the name of Caesor Mills) to deliver two hundred and fifty thousand yards of cloth. The plaintiff contended that in making the alleged contract one Miller acted as the authorized agent of the defendant. At the close of the evidence the plaintiff made the following offer of proof: On September 12,1917, Miller came to his office and said to him, “ ‘ We will sell you Government bombazine to count 64 x 60, water repellant finished, delivering twenty-five thousand yards in November, seventy-five thousand yards in December, one hundred thousand yards in January, and fifty thousand yards in February, at the price of thirty-one and one-fourth cents per yard for the first one hundred thousand yards and thirteen cents
It is the contention of the defendant (1) that the evidence offered was not sufficient to show the authority of the agent Miller to make the alleged contract, and (2) that the memorandum offered was not sufficient to satisfy the statute of frauds.
As to the authority of Miller to make the contract of sale, the plaintiff offered evidence tending to show that about the middle of August, 1917, in the defendant’s office in New York he bought fifteen thousand yards of government bombazine of the defendant, that he then told him that he “was going to buy a lot of goods, and asked the defendant if they would be able to take care of him in time of need, and that the defendant said, — You go ahead back home, and Mr. Miller will see you occasionally every two or three weeks, and he will fix you up and I will back him up; ’ that Mr. Miller was present at this conversation and said to the plaintiff ‘ I am to be in Boston pretty soon and I will come in to see you/ that about September 1, Miller come to see the plaintiff and urged the plaintiff to buy goods, but that they could not agree and Miller left, and that Miller came back on September 12, and urged the plaintiff again to buy goods and the plaintiff and Miller came to terms.” There was also evidence that the defendant had stated that Miller was his New England representative. We are of opinion that the evidence was sufficient to warrant a finding that Miller
In view of the testimony offered by the plaintiff and his offer of proof, it could not properly have been ruled that there was no sufficient memorandum of the contract within the statute of frauds. If as the jury could have found there was a completed verbal contract between the parties, whereby the plaintiff agreed to purchase and the defendant to sell the cloth mentioned in the declaration, the memorandum was sufficient evidence of the contract to satisfy the statute. While it is in the form of an order, it contains all the essential elements of the contract; the nature and description of the cloth, the quantity sold and the price to be paid therefor, the terms of payment, and the time of delivery are all definitely set forth. It is signed by the plaintiff and by Miller as seller, and is directed to the Caesor Mills, the name under which the defendant conducted his business. In legal effect it is an order in which, the plaintiff agreed to purchase the goods, in accordance with the terms stated, and the words “ Seller B. Miller ” amount to an acceptance of the order; it is a sufficient memorandum of the contract to charge the defendant, if Miller was authorized by him to make the sale. Williams v. Bacon, 2 Gray, 387, 392. Sanborn v. Flagler, 9 Allen, 474, 476, 477. Morrison v. Browne, 191 Mass. 65, 68, 69. George Lawley & Son Corp. v. Buff, 230 Mass. 21. Hoyle v. Hoyle, [1893] 1 Ch. 84.
The contract and the memorandum which is necessary to its validity under the statute are distinct things. The statute presupposes a contract by paroi. If, at the interview, the oral agreement was made, and then put in writing and signed, the contract would be binding upon both parties. Lerned v. Wannemacher, 9 Allen, 412, 416. Nickerson v. Bridges, 216 Mass. 416, 420. There being evidence from which it could be found that Miller was authorized to make the sale, and if the jury so found, it follows that he had authority to execute on behalf of the defendant a memorandum sufficient under the statute of frauds. Williams v. Bacon, supra. “ An agent may write his own name, and thereby bind his principal; and paroi evidence is competent to prove that he signed the memorandum in his capacity as agent.” Sanborn v. Flagler, supra, at page 477. New England Dressed Meat & Wool Co. v. Standard
The direction of a verdict for the defendant was wrong; the original memorandum and the carbon copy were competent. In accordance with the terms of the report the entry must be
New trial granted.
