98 Mo. App. 456 | Mo. Ct. App. | 1903
The plaintiffs and the defendant were each dealers in cabbage, the place of business of the former being Kansas City and that of the latter,
Our statute (section 3419) is: “No contract for the sale of goods . . . shall be allowed to be good unless '. . . some note or memorandum in writing be made of the bargain and signed by the parties to be charged with such contract. ” It is almost a literal transcript of the seventeenth section of the English Statute of Frauds (29 Car. 11 C. I.) Benjamin on Sales, 9. It is an old practice to put in evidence several papers, as letters, etc., relating to the same contract and by their references to or connections with each other, to establish all the requisites of a proper memorandum under the statute. Brown Stat. Frauds, 346b, et seq.; Hideman v. Wolfstein, 12 Mo. App. 366; Greeley-Burnham Grocer Co. v. Capen, 23 Mo. App. 301; Cunningham v. Williams, 43 Mo. App. 629; Armsby Co. v. Eckerly, 42 Mo. App. 299; Moore v. Mountcastle, 61 Mo. 424.
In Swallow v. Strong, 85 N. W. (Minn.) 942, it was said that “the memorandum of a contract for the sale of land, to satisfy the statute of frauds, may con
A sale is defined in the elementary books to be a contract or agreement for the transfer of the absolute property in personalty from one person to another for a money price. Tiedeman on Sales, sec. 1; 2 Kent’s Com., 468; Benjamin on Sales, sec. 1; Story on Sales, see. 1. According to the Roman law, a sale was not the immediate transmutation of the property, but a contract of mutual and personal engagements for the transfer of the thing on the one hand and the payment of the price on the other without regard to the time of the performance on either part. Cunningham v. Ashbrook, 20 Mo. 554. At the common law, consent alone was sufficient to constitute a valid sale. The W. W. Ken
In making a contract involving the statute of frauds there are three essential and inevitably necessary ingredients : (1) the parties; (2) the subject-matter; and (3) the price. Where any one of these essentials is wanting, there is no contract. Nelly v. Thuey, 143 Mo. 422; Martin v. Mill Co., 49 Mo. App. 29. The dominating question here is, whether or not, if we take the several writings and construe them together as an entirety, they disclose a contract of sale sufficient to satisfy the requirements of the statute of frauds? ■
A reference to them will show that on the 23d of April, the defendant telegraphed plaintiffs he wanted “a carload or two of California cabbage, quick, wire what they could do;” and to which plaintiffs on the same day answered that they had “one car of Texas cabbage ’ ’ which would be due on the next day and which “they could sell at $3.60 per crate.” To plaintiffs’ said answer, defendant on the 25th replied, “if car is medium sized, hard green, well iced, ship.” On the next day, the 26th, the defendant telegraphed plaintiffs: “Can you offer Calif, rolling, wire number, routing Texas car.” Plaintiffs on the same day answered: “Have no Calif, unsold,for quick delivery, but can give you another Texas due here Sunday.” On the 27th, plaintiffs telegraphed defendant: ‘ ‘ Can divert another car Texas cabbage same quality and price.” To this, the defendant answered: “Car just arrived. May ship another well iced if at $3.50.” On the next day, the 28th, the plaintiffs telegraphed defendant: “Will divert car Monday morning $3.50 delivered. If not satisfactory wire quick.” On the next day, the 29th, the defendant telegraphed plaintiffs: “Do not spare ice on to-day’s shipment.” And afterwards, on the same day, the defendant telegraphed plaintiffs: “Will take another car nice medium cabbage, same price. Answer.” To this the plaintiffs telegraphed defend
The foregoing telegrams and letters are connected-by reference, express or implied, so as to show they all relate to the same subject-matter and no good reason is seen why they should not constitute a sufficient memorandum of a -contract of sale to satisfy the statute.
Accordingly the judgment will be affirmed.