North Packing & Provision Co. v. Lynch

196 Mass. 204 | Mass. | 1907

Rugg, J.

The instrument in writing offered by the plaintiff is not a contract of sale. But one party is named. At least two persons are required to make a contract. No reference to or description of the plaintiff in any form appears upon the paper, the defendant alone being named. It is an essential element of any valid contract in writing that the contracting parties should be described. Sanborn v. Flagler, 9 Allen, 474. Potter v. Duffield, L. R. 18 Eq. 4. Williams v. Lake, 2 El. & El. 349. Jarrett v. Hunter, 34 Ch. D. 182. The writing probably at most does not rise above the dignity of a mere memorandum signed by the defendant, which would be competent but not exclusive evidence as to the terms of the contract entered into between the parties. No question arises under the statute of frauds.

Without putting the decision upon this ground, we pass to another consideration, which is decisive. The paper does not purport to be a contract of sale. It is a detailed description of the terms and conditions upon which eggs may be stored. If there is cut out of the paper all that relates to this subject, there remains, outside date and name of defendant, only this: “ 100 Cases Eggs 3000-19c. . . . He to pay interest at 6 % on amount exceeding deposits of SI.00 per case. . . .” This amounts to nothing more than a mere bill of parcels with a statement as to interest to be charged. This is a class of paper commonly used in trade and commerce, and has never been held to be a contract in writing. The rule that paroi evidence is inadmissible to vary or control a contract in writing is not applicable to such a paper. A bill of parcels is informal, not designed or employed to set forth the terms of the bargain or sale. Fletcher v. Willard, 14 Pick. 464. Hildreth v. O’Brien, 10 Allen, 104. Stacy v. Kemp, 97 Mass. 166. Hazard v. Loring, 10 Cush. 267. Edgar v. Breck & Sons Corp. 172 Mass. 581. Dunham v. Barnes, 9 Allen, 352. Shenck v. Saunders, 13 Gray, 37. Atwater v. Clancy, 107 Mass. 369. Commonwealth v. Jeffries, 7 Allen, 548, 564. Walker v. Staples, 5 Allen, 34. Caswell v. Keith, 12 Gray, 351. Harper v. Ross, 10 Allen, 332. The evidence offered by the defendant as to what the terms of the contract were should have been received.

Exceptions sustained.