78 Mo. 391 | Mo. | 1883
This is an action for the breach of a certain contract, or memorandum in writing, alleged to have been executed by respondents to appellant, a copy of which wall be found set out in the opinion, where it has been placed for greater convenience of reference. The petition alleges in substance, that plaintiff was engaged as a dealer in agricultural implements, lumber, etc., at Linneus, Missouri ; that defendants were partners engaged in the manufacture of agricultural implements at Canton, Illinois, and
The answer after admitting the partnership, and denying generally all the other allegations of the petition, states that there was no money or other valuable thing paid as earnest to bind the pretended bargain set out in plaintiff’s petition, or in part payment thereon; nor did the buyer accept any part of said goods or actually receive the same; nor was there any note or memorandum of said pretended bargain in writing, made at the time alleged, or subsequently, and signed by the defendants or any person or persons to be charged with such contract or their agents lawfully authorized — to which there was a reply putting the new matter in issue.
On the trial the plaintiff offered an abundance of evidence to prove the allegations of his petition, some portions of which the court admitted and others rejected. It seems that the negotiations began between one -Taylor, as the agent of defendants, and plaintiff at Linneus, and were concluded by Taylor and one Coons as the agent of plaintiff
The' only questions in this case relate to the sufficiency of the following instrument as a memorandum to take the case out of the Statute of Frauds, and the admissibility of parol evidence under it:
“ Chillicothe, Mo., February 22nd, 1878.
Messrs. Parlin & Orendorff, Canton, Ill.:
Gentlemen: Please execute the following order for plows, cultivators, * * etc., to be delivered on board cars in Chillicothe, Missouri, marked for J. E. Lash: QUANTITY. OLD GROUND PLOWS, IRON-BEAM. PRICE. 2. No. 6. 14-inch cut, medium steel landside....... §>22 00
side, three-horse...................»........... 22 00
5. A 4. "Wood-beam. 12-inch cut, medium steel
landside.......................................... 14 25
3. A 6. Wood-beam. ' 14-inch cut, medium steel
landside.......................................... 16 75
2. A 7. Wood-beam. 16-inch cut, medium steel
landside, three-horse.......................... 20 25
cultivators.
50. Iron-beam. Parlin’s Patent, with shields...... 14 50
19. Wood-beam. Parlin’s Patent, with shields.... 13 50
Eor which I agree to give you my notes payable with exchange or by express, prepaid, at above list, for plows— less forty-five per cent, and payable all January 1st, 1879, with ten per cent interest from January 1st, 1879. Cultivators, less net per cent, and payable January 1st, 1879, With ten per cent interest from January 1st, 1879.
Parlin & Orendoree,
Per Taylor.”
Respondents maintain, and the court below held, that it was void for uncertainty, and hence not a sufficient memorandum for any purpose. These questions must naturally be considered together. We entertain no doubt but what the memorandum is sufficient under our Statute of Frauds, as construed by this court. Certainly it is not complete and perfect in itself, so as to render it an artificially drawn contract; but it is sufficiently definite and certain on its face to render it admissible. Being clearly admissible, there can be no doubt under the authorities cited, but what the parol evidence rejected by the court was admissible to explain and ajiply it to the contract actually existing between the parties. Parlin & Orendorff, the respondents, are the parties to be bound by this contract. It is signed by them by their agent, contains an order on them to deliver certain goods to John F. Lash, the appellant by name; it contains an exact description of the property to be delivered, with
The rejected parol evidence tended to show that Taylor was the duly authorized agent of respondents, and as such had the goods in his custody at Chillicothe, with power to sell them; that he went to appellant’s store in Linneus, and endeavored to sell them to him; that appellant thought there were more of them than he could dispose of, and asked time to look around and see if he could not job some of them off in the surrounding towns of his county; that time was given, and ascertaining that he could so dispose of a sufficient quantity of them to justify the purchase, appellant sent Coons as his agent, to Chillicothe, to close the trade with Taylor; that Coons did close the trade with Taylor as directed, exactly as stated in the memorandum; and that when it was so closed, and certain dispositions had been made of the goods, looking to their shipment according to the disposition made of them by appellant, Taylor executed this memorandum and gave it to Coons to deliver to appellant as evidence of the contract they had concluded. There was other evidence, but the tendency of sufficient has been fairly stated to show its admissibility. Some portions of it may have been incompetent and irrelevant, but those questions need not be determined now.
The case of O’Neil v. Crain, 67 Mo. 250, seems entirely
Respondents’ counsel stoutly maintain the insufficiency of this memorandum and cite numerous authorities to sustain his position. Browne on the Statute of Frauds is cited and very much relied on; but a critical examination of the sections cited will show that they tend to establish the contrary conclusion. For instance, Mr. Browne in the fourth edition of his work, section 372, says: “ It is necessary that the memorandum should show who are the parties to the contract by some reference sufficient to identify themand he cites Champion v. Plummer, 1 Bos. & P. N. P. 252, as a leading case on the subject, in which “the memorandum was duly signed by the vendor but the name of the purchaser nowhere appeared.” The court said the
For the reasons stated the judgment should be reversed and the cause remanded.