122 Me. 511 | Me. | 1923
This is an action of assumpsit on breach of contract, the plaintiff claiming damages for defendant's refusal to accept and pay for a shipment of merchandise.
The case was heard by the court without the intervention of a jury. Therefore, the findings of fact are conclusive, and in this case the presiding Justice found that the plaintiffs by their salesman solicited and received from the defendant an unsigned order to the amount of $562.75 on June 15, 1921, specifying thirteen different styles of garments selected from plaintiff's samples1 and lists and directing shipment on September 1, 1921.
On June 20, 1921, the plaintiffs wrote the defendant: “We beg to advise that we have today placed in work your order given our Mr. Salzman on the 15th inst for 17 garments to be shipped September 1st.....” The defendant denied receiving this letter, but the court found that it did. On July 25, 1921, the defendant wrote the plaintiff: ' “Please cancel the order given your representative, as I will be in New York shortly and will make a selection.” To this the plaintiffs replied on July 27: “We wish to advise that as per our letter of June 20 this order has been placed in work and is now in the process of manufacture, therefore, it will be impossible for us to accept your cancellation. This, merchandise has been cut and made special to your order.” The goods were shipped afterwards to the defendant which refused to receive them, and they were taken back and sold by the plaintiffs. This action is brought to recover the net loss which the court found to be $248.25 with interest from date of the writ.
The defefise is the Statute of Frauds, and the decision turns upon the existence of any memorandum in writing, signed by the party to be charged, sufficient to take the case out of the statute.
The existence of a contract and its' terms are established. The unsigned order as written out- by the salesman, a copy of which he thinks he gave to the defendant, the court found to embrace the contract. The defendant attempted to set up another provision in the original trade to the effect that it was agreed that the defendant would have .the right to cancel the order in the event that it fouhd that other
The only question then is the existence of a sufficient memorandum. The court found as a fact that the order referred to in the defendant’s letter of July 25 was the written order given without signature to the salesman, and ruled as a matter of law that taking that order and this letter together they constitute a sufficient memorandum. To this ruling exceptions were taken, but they cannot be sustained.
No doctrine is more firmly established than that a sufficient memorandum may be found to exist in a signed communication referring to another unsigned communication so that the two when taken together express the trade. “It is sufficient if the letters or other writings signed by the party to be charged, contain by statement or by reference to others of the writings, all the essential parts of the bargain.” Weymouth v. Goodwin, 105 Maine, 510.
The unsigned order is found to contain the full terms of the trade. This letter signed by the defendant recognizes the existence of that order, and is none the less effective because it contains an attempted cancellation of the contract. Benj. on Sales, 4th Ed. Vol. 1, Page 275; Townsend v. Bargraves, 118 Mass., 335. That is all that is required. The memorandum may bind the party to be charged whether it was intended to do so or not. McClellan v. McClellan, 65 Maine at 506.
At a later date, September 26, 1921, the defendant wrote to plaintiffs’ attorneys a letter in which again it recognizes the existence of a prior contract and says, “I had the privilege to cancel the order, which I did, finding that I could get better goods for my trade, and I fail to see where he can hold me responsible for goods made up when I cancelled the order as agreed upon between the representative and myself.”
The terms of the Statute are abundantly satisfied and therefore it cannot be utilized to thwart the legal liability of the defendant under a contract fairly made.
Exception,s overruled.
