162 Mo. App. 195 | Mo. Ct. App. | 1912
This was an action for damages ■for the alleged breach of a contract in the sale of onion sets. The plaintiffs constitute' a partnership firm engaged in growing and shipping onion sets from their place of business near the city of Ohicage, Illinois. Defendant is a corporation engaged in the wholesale commission business in the city of Springfield, Missouri. In their petition plaintiffs state that on or about March 1, 1910, they entered into a written contract with the defendant whereby they sold to the defendant onion sets to the amount of 800 bushels, being a carload lot, of various hinds — afterwards changed to 708 bushels at the same price. The petition was in two counts, but at the conclusion of the evidence the plaintiffs elected to stand upon the second count. It is admitted that the onion sets were shipped from Chicago to Springfield and there tendered to the defendant, but the defendant failed and refused to accept them and pay for them. After they arrived in Springfield, defendant proposed to plaintiffs by telegram that it would accept the onion sets if the plaintiffs would authorize the bant to reduce the draft (which accompanied the bill of lading) ten per cent. The plaintiffs thereupon notified the Merchants’ National Bank of Springfield, to which the bill of lading with draft attached had been sent, to reduce the draft ten per cent, and the bank immediately undertook to notify the defendant of such reduction; but the defendant still refused to accept or pay for the onion sets and plaintiffs claim they had to resell them in the open market at a loss, after taking off the ten per cent discount, and this action is for the amount of such loss. The defendant’s answer was a general denial. At the conclusion of the plaintiffs’ evidence, the
The respondent contends that the appellants took a voluntary nonsuit and hence were not entitled under. the law to an appeal. The record shows the following recitals as to the nonsuit:
“Thereupon the defendant requested the court to give to the jury an instruction in the nature of a demurrer to the evidence, which instruction is in words and figures as follows, to-wit: ‘The court instructs the jury that under the pleadings and evidence in this case, the plaintiffs are not entitled to recover on the second count.’ To the giving of which instruction, the plaintiffs then and there at the time objected. Thereupon and notwithstanding plaintiffs’ objection to the giving of said instruction, the same was given by the court to the jury, to which action of the court, the plaintiffs then and there at the time excepted. And thereupon and by reason of the giving of said instruction and the court’s adverse ruling to plaintiffs upon the same, the plaintiffs were forced to take and did take an involuntary nonsuit, with leave to move to set the same aside, which said nonsuit and leave was granted by the court.”
This record shows beyond question, as clearly as language could express it, that after defendant’s demurrer to plaintiffs’ evidence had been sustained by the court over the plaintiffs’ objections and exceptions, the plaintiffs, by reason of the giving of said instruction and by reason of the court’s adverse ruling against the plaintiffs upon the demurrer to the evidence, were forced to take and did take an involuntary nonsuit with leave to move to set the same aside. This case is to be distinguished clearly from those cases where the court has merely declared its intention to give an instruction in the nature of a de
This is an action for breach of a contract of sale of goods, wares and merchandise, by the plaintiffs to the deféndant, in which the purchase price was over thirty dollars. It is one of that class of contracts governed by the last clause of Sec. 2784, E. S. 1909', known as the Statute of Frauds, which section requires that “some note or memorandum in writing be made of the bargain, and signed by the parties to be charged with such contract.”
The alleged contract is based upon two telegrams, the first of which is as follows: “Springfield, Mo., Mar. 2, 1910. Leesley Bros., Chicago, Ill. If you will authorize bank to reduce draft ten per cent will accept onions. Show that much soft rot. A. Rebori Fruit Co.” Immediately on receipt of this telegram, plaintiffs went to the Fort Dearborn National Bank of Chicago and caused it to send the following telegram to the Merchants’ National Bank of Springfield, Missouri: “Chicago, Ill., Mar. 3, 1910. Merchants’ National Bank, Springfield, Mo. Reduce our draft No. 42345, Rebori Fruit Co., ten per cent on face of draft, our February 26th. Fort Dearborn National Bank.”
It is apparent that this is a contract by offer of the defendant and acceptance by the plaintiffs in which the defendant promises to take the onions in consideration of the plaintiffs doing' a certain act, namely, authorize the bank to reduce the draft ten per cent, which authorization plaintiffs immediately gave the bank.
The defense of the Statute of Frauds is available to the defendant under a general denial; and where the defendant denies as in this case the making of the
The general rule is that contracts may be made by telegram, or by mail and telegrams, and will constitute a valid contract under the Statute of Frauds where the minds of the parties met and the terms of the contract were sufficiently definite and certain.
The respondent contends that the telegrams in this case are insufficient memoranda of the bargain and dtí not meet the requirements of the statute of frauds because they are indefinite, uncertain and ambiguous, and do not sufficiently identify the property sold and the terms of the sale. The Statute of Fraud requires that the writing containing the contract should embody in itself all the essential elements or terms of the contract, and that parol evidence is inadmissible to piece out the contract, or modify, add to, or subtract from, the essential elements of such contract ; that the written memorandum must be complete within itself and be the sole repository of the essential elements of the bargain. [Reigart v. Manufacturers Coal and Coke Co., 217 Mo. 142, 117 S. W. 61.]
If, in this case, we are to be confined to the two telegrams, it is evident that the contention of the respondent would be unassailable. The two telegrams considered by themselves are on their face so indefinite and uncertain that we could not determine what onion sets were referred to or what draft was alluded to. But the court is allowed to interpret the memoranda (the two telegrams in this case) in the light of all the circumstances under which the .same, was made; and if, when the court is put into possession of all the knowledge which the parties to the transaction had at the time, it can be seen from the memoranda who the parties to the contract were, what the subject
The Statute of Frauds, however, does not require • that the whole bargain or agreement between the parties should be contained in one writing, but where there are several writings, telegrams or letters, referring to and forming a part of the same subject-matter of the contract, all of them may be consulted and considered and construed together in ascertaining the terms of the contract. If the several writings, letters or telegrams', are signed by the parties themselves, they need not specifically refer to each other if by inspection and comparison of the writings themselves their connection with the same subject-matter is made sufficiently to appear. [Peycke Bros. v. Ahrens, 98 Mo. App. l. c. 459, 72 S. W. 151.] Though the written memorandum of the contract of sale is deficient in that it fails to state the price of the commodity sold, such deficiency may be cured by other writings referring to the same subject and which furnish the price. [Glasgow Milling Co. v. Burgher, 122 Mo. App. 14, 97 S. W. 950.] And it is not necessary that the writings, telegrams or letters, should show the time and place of delivery of the goods. [Great Western Printing Co. v. Belcher, 127 Mo. App. 133, 104 S. W. 694.]
One of the specific objections made to the memorandum of the contract in this case is the insufficiency of the telegrams in that the description of the subject-matter (the onions) fails to show what quantity of onions or what varieties of onions were the subject of their negotiations; that it might be 600 bushels or 800 bushels, or any other quantity so far as the writing shows. The subject-matter of a contract falling within the Statute of Frauds must be so described in the memorandum as to be capable of certain identifica
On the 26th day of March, 1909, the parties to this transaction entered into a written contract by which the plaintiffs agreed to sell and the defendant to purchase 800 bushels of onion sets, specifically described, at a price per bushel specifically named, for delivery in February, 1910, on the following terms and conditions: “Net cash, f. o. b. our warehouse, Hawthorne, Chicago. Packages charged for extra at cost. Delivery to be made as near specified date as weather will permit. Sets to be in good merchantable condition at time of shipment. To be screened through 1% inch mesh ■ sieve.”
On February 15,1910, the defendant made inquiry of the plaintiffs by telegraph: “Now many onion sets of each kind will you be able to ship us in our car? Please make an early reply.” On February 17, 1910, the plaintiffs replied by letter, as follows: “Replying to yours of the 15th inst. we will ship about 365 reds, 52 white, and 165 yellow onion sets. Do not know exactly how many we will have, but expect to put in car about 600 bushels or more.” On the 19th, the defendant replied by letter as follows: “If you can only ship 600 bushels this will not nearly make up a minimun car. At what price can you secure and include in the
A member of the plaintiff firm testified that he sent the bill of lading with the draft attached (or had the Fort Dearborn National Bank of Chicago send it) to the Merchants’ National Bank of Springfield, Mo., and that the onion sets were shipped in the usual way, that is, with sight draft with bill of lading attached. The draft referred to was as follows:
“No. 42345 Chicago, Feb. 26, 1910.
“On arrival of goods pay to the order of Fort Dearborn National Bank, $999.50', nine hundred and ninety-nine and 50-100 dollars, value received, and charge the same to account of Leesley Bros. To A. Rebori Fruit Co., Springfield, Mo.”
The evidence of the plaintiffs tended to show that the prices of onion sets on the market at Springfield, Missouri, about the 1st of March, 19101, were lower than the contract price of the onion sets in question,— probably as much as fifteen or twenty per cent under the contract price, and that the market continued to decline with lower quotations from the 28th day of February till the 14th day of March, 1910.
■ On March 1, 1910; the defendant sent the plaintiffs the following telegram: “Onion sets show percentage soft and rot. What can you do ? ” To which the plaintiffs replied by telegraph as follows: 11 Onion sets left here.O'. K. Must be some mistake.” And on March 2, 1910; the plaintiffs telegraphed the defendant as follows: ‘ ‘ Take onions in and we will protect you.” On the same day the plaintiffs received the following telegram from the defendant: “If you will authorize bank to reduce draft ten per cent will accept onions. Show that much soft rot.” Upon receipt of this, the testimony shows that plaintiffs went to the Fort Dearborn National Bank which issued the draft and told them to notify the Merchants-’ National Bank at Springfield to reduce the draft ten per cent, and that bank on March 3,1910, sent to the Merchants ’ National Bank the following telegram: ' “Reduce our draft No. 42345-, Rebori Fruit Co., ten per cent on face of draft, our February 26th.” The evidence of the plaintiffs shows that Mr. Keet received this telegram
On March 9,1910, the defendant sent the plaintiffs the following telegram: “We only learned last evening that you authorized to reduce onion draft ten per cent. You failed to notify us accepting offer. We cannot handle account bad condition.”
The plaintiffs’ evidence tended to show that the onion sets at the time they were shipped from Chicago were of the class and kind and in the condition required by the terms of the contract. Further, that upon the refusal of the defendant to take the onion sets, plaintiffs sold them and realized as the net proceeds of the sale the sum of $196.82.
Applying the rules hereinbefore stated which govern cases of this kind to the facts disclosed by the record, in the light of the circumstances surrounding the parties, we are of the opinion that the memorandum of the sale considered in connection with the letters and telegrams pertaining to the same subject-matter shows that the memorandum was in substantial compliance with the Statute of Frauds. To hold otherwise would certainly embarrass present business methods, and increase the expense, and impair the usefulness of the telegraph as a necessary instrumentality in modern commerce.
It is further • contended by respondent that to make an offer or proposal (under the facts'disclosed in this record), a contract, there must he an accept
Por the reasons herein appearing, the judgment is reversed and the cause remanded.