*1 H. LINDSAY CO. v. GREAGER. R.

No.

United States Court Circuit. Tenth 8, 1953. June Denied Moynihan, Montrose, Colo.,

Charles J. appellant. Greager, Colo., Collins, Harold C. Fort appellee. PHILLIPS, Before Judge, Chief PICKETT, BRATTON Circuit Judges.

PICKETT, Judge. Lindsay Company, H. corporation, brought against this suit O. H. specifically enforce a contract for the sale damages. and for complaint alleges than on October plaintiff agreed buy, the defendant’s clip, 38,000 1951 wool not to exceed pounds, per pound; at 80$ reduced to defendant; signed by the that the defend 1. The written memorandum was attached sheep pound, Boston, Massachusetts, my/our have sold to R. H. 75 fine and lbs., received printed say Company tions thereof “In consideration of One dollars “No County from about clip I/we complaint terms * * * of San grade me/us now read as follows: 3.000 employee Eighty this contract. authority own bucks Miguel, Lindsay Company ewes, part payment the material exceed to which are all the of R. H. State of which are in change (80$) yearlings, (§1.00) 38,000 Colo., Lind I/we por Lindsay Company, tive free on at say Company. Colo., “Witness G. A. Hanson.” “The balance of the “I/we ^[*******] ¤ Norwood, Colo., to deliver payment by agree later “Signed Address ^[*] board to shear time than draft on It. O. A. on or about or their ^[*] cars May 30th, purchase money Greager, delivery the above wool ^[*] at said R. H. representa- Montrose, ^[*] Colorado. II. May Lind- # 1st *2 130 purchasing and G. Hanson was wool plaintiff that he would re-' a

ant notified the agent plaintiff. agent testified for the the wool in accordance fuse to deliver buyer met de- that he and another wool the part of the' The material agreement. the' a cafe in existence of the cont answer denied the ' purchasing and talked to him about was alleged ract. It was also that contract clip. invited them The defendant then void of Frauds. Statute to his home where the discussion continued. necessity proving To eliminate the plaintiff’s that agent told the defendant purposes of the for the value of the wool paying stipulated that value action the pay if agent defendant asked the he would stipulated per pound. was further $1 dicker- that much for his wool. After some his wool that defendant would deliver price, as the de- agent to the told plaintiff; plaintiff would to the pay that he would him therefor; pay the defendant replied that that and the defendant that in the event the court should find talk good price, was and that he would no effective contract was room, with his wife. The defendant left the plaintiff pay defendant an would returned and “I sell will wool; per pound additional for the it,” pay agent you if will and that in the event the replied, right, pay it.” Where- “All fur-, upheld, was would not be upon “Proceed Pursuant obligated ther to the defendant. agent contract out.” The asked stipulation, delivered the wool was pay- an advance defendant he desired defendant was ment, replied but the that he did defendant per pound therefor. not need the he did not want Upon trial, court concluded that the agent interest it. on proof did not sustain burden of its testified that he told the defendant he would mutually joint “that oral contract per pound him for the wool purchase and sale of defendant’s wool was pay for it when it delivered at Mont- was made,” made, or rose, Colorado. The written plaintiff’s right to relief rested out, signed by was then made defendant re- contract. The court copy testimony delivered to him. This fused enforce written contract be- buyer. was corroborated the other wool mutuality, cause it lacked and entered ment for accordance plain defendant testified that he met stipulation. appeal is from that Norwood; tiff’s at a cafe in plaintiff’s from the cafe to where, The action was one the en- negotiations, home after some presents of an oral sale and forcement agent, who grower, was a wool also questions. agree- 1. Was there an oral asked, that he had sold his wool for ment between the you your wool?”; “Would take of defendant’s wool? Was after agent, some hesitation he told the signed' 'by there a sufficient memorandum contract”; “You the Colo- that he then v^ent to the kitchen and told of Frauds? We answer rado Statute both his wife that he had contracted his wool questions in the affirmative. Defendant further testified that an advance refused on his wool at that The evidence is not in substantial con- .2 28, 1951, time On March grower defendant’s flict. The defendant was wool at- into wool. He ‘We would follows: drifted Defendant’s come down to the house to see like to Court all of the “Q. Will tell the you.’ leading up signing ‘O.K.’ After we arrived at subject house, Mr. Han- wool. instrument? —A. I met Kelley remember, by-play, Pine Lone kinda so and Mr. don’t son speak, just happened by appointment, Mr. Hanson ‘I feel Cafe, today. way. Naturally, Would kinda weak the conversation plaintiff stating validity torney accept- wrote that: tion the offer and only careful of said con- ance. The document ““After a memorial completed my opinion oral agreement Mr. because, among validity. bound other affect thereunder Con- *3 26; tracts, things, the lacks Sec. contract Rosenfield v. U. Trust S. Co., binding 210, law, 323, and is therefore not Mass. N.E. 122 A.L.R. 1210, Conti, party. Accordingly, 1217; Nigro I have ad- either Annotation v. 480, 752, privileged 353, he to vised Mr. Mass. 66 N.E.2d 165 A.L.R. quite withdraw and he elected to do His Annotation so. obvious by is enclosed herewith.” the memorandum notice of withdrawal the defend- executed by purpose signed the de- ant satisfying notice of withdrawal was for of you have stated that “Inasmuch as Statute of Frauds. accepted, or the wool not ratified executed question sufficiency This of the leaves 29, purchase contract, dated October party signed by of memorandum * * * you hereby notified I are charged, the Statute Frauds. The de- withdraw from contract.” 143A, provides: ’35 4(1) C.S.A. Ch. Sec. deny that Hanson had of- any contract “A sell or a sale of 80$) he fered him or that had goods or choses in action of the value price. sought sell for that He upwards of five hundred dollars shall or repudiate the sale because the had by not be enforceable action unless signed the memorandum. buyer accept part goods shall or of the choses action so contracted to be sold Sales Uniform effective Act sold, same, or actually receive goods states contract “A to sell or give something in earnest to bind the whereby agrees is a contract the seller contract, part payment, or in or unless goods transfer writing some note or memorandum in price.” called a consideration ’35 by of the signed contract sale be 143A, 1; Am.Jur., Ch. C.SA. Sec. in that think, Sales, considering all Sec. We behalf.” case, the facts and by plaintiff there was a offer definite Generally speaking, a memoran purchase price the wool at dum is sufficient it rea 80{5 sets forth with unqualified acceptance of that sonable names price by agreement the seller. The oral contract, description to' goods complete, and sale was certain and to which the contract es relates by and so considered definite sential terms and conditions constituting later. until several months contract, including oral the consideration. contrary court the trial er 207; Contracts, Sec. North roneous. It is true that the Supply American Seed Co. Cedarburg agreement Co., 31, terms of the should be Wis. N.W.2d 159 A.L. incorporated 250; Pur Sherman, the so-called “Wool Ind.App. Block v. but this 951; chase Contract” was not a condi- Taylor, 34 N.E.2d Micheli v. today?’ said, ‘No, ing my I at 80 cents.’ That was the extent, signed, not.’ And there been recall, lit- I would had and the contract was my copy conversation. I don’t tle off it was handed mo. —it say, then he ‘Would 80 cents Mr. Hanson did ‘Do want an ‘No;’ wool?’ I hesitated. He advance?’ I there was no money paid is what sold mine for.’ reach- ‘That I Ho and no offered to be paid by plaintiffs. into his book. ‘I ed over form He one of either these mine for Here’s contract.’ sold 80é. thought moment, they I for a was no Well, have “Q. must offered to yon yon conversation little cents if had SO contracted thought they I ‘You while. I it at SO1cents? —A. did. up, thought changed my contract.’ While did. mind signature.” dinette —not kitchen —and when I saw that Missus, my wife, am told the ‘I contract- 912; Clifford, constituted a firm commitment Eppich v. Colo. so- signed that he He further testified provisions of All the essential contract; that he found are purchase and signed it thought Hanson in the memorandum. purchaser; learned later that Han- the written tends that any merely signed it as a witness son had not contain it does sufficient defendant; he did signature of the the plaintiff purchase requirement “anticipate” making an oral provides that wool. It thought and that he it was a written con- due on draft, the amount is tract. is delivered. the wool when *4 sheep man and to a clearly understandable experience long court of The learned trial purchase.3 imports obligation discussion “no firm com- found that in the cause and the reversed is judgment plaintiff to mitment was made on behalf of enter instruction remanded clip.” defendant’s 1951 wool stipu- pursuant ment my dispositive view that critical and this , parties. . lation of the supported by fact substantial evidence; clearly er- is not BRATTON, Judge (dissenting). roneous, op- regard being due had for the pur- portunity committed wit- became of the court to observe the Plaintiff never appraise commitment testifying, unless the nesses their while chase the testimony. discussion credibility, weigh of the verbal their in course made the so- filling out of preceded the Accordingly, I would affirm the which sign- And unless by the defendant. of it such commitment did of con- complete lack of was a question in Therefore, crucial tract. course of was whether

the case a firm commitment discussion verbal v. DIAMOND MARINE CO. McKIE part made No. 14118. in re- testified witnesses wool. Three They were G. A. spect question. to that United States Court of

Hanson, president director and a vice Fifth Circuit. representative Kelley, a plaintiff, William plaintiff in the Hanson Denied June and the defendant. by Han-

Kelly testified to statements each if made verbal discussion which

son in the a firm commitment

constituted testified minute detail

But the defendant

concerning discussion and his

disclosed no statement was made which guage instrument, valid con- In Micheli case it is [114 specific thereby per- disclosed, 913]: may Eppich Clifford, formance be decreed thereon.’ declared in “As we Eppich memorandum the case strik- the memorandum to com- 6 Colo. bar, ingly ply statute, similar to the case at ‘must show on with the writings, face, other and it was there held that reference to parties, first, and names of names of the vendor sufficiently vendee; second, Here, shown. the terms were the words * * third, ‘received one Dollar and other the inter- ditions of the affected; fourth, valuable est import paid therefor,’ obligation terest’ consideration further, ‘purchase price words, intention balance of $7000 ‘If the names and pur- obligation contracting parties import paid,’ can be determined lan- reasonable from the chase.”