Action by plaintiffs, who were engaged in buying and selling corn, for breach of contract. Plaintiffs recovered upon trial before the court and a jury. Motion for new trial ivas sustained, and plaintiffs appealed;
The petition сharges that defendant on October 17, 1916, sold plaintiffs seven hundred and fifty bushels of corn at seventy-five cents per bushel, to be delivered at the option of plaintiffs from October 17, 1916, to March 1, 1917; charges that a demand had been mаde for the corn, and that defendant refused to deliver to *586 plaintiffs’ damage. The answer denied making the contract described in the petition, and then: “Further answering defendant avers that neither the plaintiff Geo. W. Riddle, or plаintiff D. E. Dees or plaintiff Bernice Lumber Company at any time accepted any part of the corn alleged in their petition to have been sold to them by defendant, nor did either of said parties ever actually reсeive any part of the corn alleged to have been sold to them by the defendant, nor did either of said parties ever give defendant anything in earnest to bind any bargain or sale of corn by the defendant to plaintiffs, nor did either of the plaintiffs ever pay the defendant anything for any corn sold by defendant to plaintiff, nor was there at any time any note or memorandum in writing made of the bargain or sale of any corn by defendant to plaintiffs and signed■ by the defendant. and plaintiffs, or signеd by the agents of defendant and plaintiffs lawfully authorized.” October 17, 1916,, defendant signed the following: “Contract. Bernie, Missouri, 10/17-16. I (have) hereby sold to the Bernie Lumber Company of Bernie, Mo., 750 bu. good dry No. 2 corn, snapped or shucked; 70 lbs. to bu. shuсked corn, and 75 lbs. snapped corn at 75 cents per bu. f. o. b. cars, Bernie, Mo., to be delivered at option of Bernie Lumber Company, from this date to March 1, 1917. George Castner. ’ ’
Defendant failed to deliver any corn, and plaintiffs brought this suit. Defendant contends: (1) That the contract was unilateral, and did not bind plaintiffs to accept the corn though he offered to deliver it; (2) that the memorandum of the contract was materially altered without his knowledgе and consent, after he signed it, and was thereby rendered void.
The trial court assigned no reasons for granting a new trial, and hence its action should be sustained, if ’it can be, upon consideration of the whole record.
The mеmorandum of the contract signed by defendant was as appears, supra. The contention that there was no mutuality of obligation is based upon the con
*587
struction of the language: “To be delivered at option of Bеrnie Lumber Company, from this date to March 1, 1917.” Defendant urges that this language gave plaintiffs the option of accepting or not accepting the corn. The construction of a contract is controlled by the intentiоn of the parties as appears from the language of the whole instrument. , [La Crosse Lumber Company v. Schwartz,
When the contract was entered into, and the memorandum drawn up, plaintiffs did not sign the memorandum, but did later. .
The only question in determining as to the mutuality of obligation, is the construction of the option reference. If the option refers to the delivery and qualifies that term, then defendant’s constructiоn is correct, because if plaintiffs 'might accept or not at their own will then they were not bound to do anything, and mutuality of obligation would be lacking.
In considering the question of mutuality we do not consider that the Statute of Frauds when the contract was entered into would bar defendant from proceeding against plaintiffs should they refuse to accept, because a contract within the statute (Section 2784, R. S. 1999) is enforceable only against the party or parties who sign the memorandum, unless taken out of the statute on some other ground, and no distinction is made whether the section reads
“party
to be charged” or
“parties
to be charged.” [Cunningham v. Williams,
*588
Was the memorandum of the contract altered so as to render thе contract void, or the memorandum inadmis
*589
sible as the written evidence of the contract? Sometime after defendant had signed the memorandum as set out, supra, Dees, one of the plaintiffs took the carbon coрy he had retained and without the knoAvledge and consent of defendant wrote thereon: “Accepted. 10-17-16. Bernie 'Lumber Company, Per Dees.” Defendant corn tends that this changed the legal effect of the memorandum, and thеrefore rendered the contract void; or that because of said alteration the memorandum became useless as evidence. But did this addition change the legal effect of the memorandum so far as affects defendant'?' It certainly did not change the contract, because plaintiffs were always bound to accept so^ far as the contract was concerned, and could only have avoided acceptаnce or damages for refusal by resorting to the Statute of Frauds. Endorsing the acceptance in writing, and signing the same by plaintiffs had only the effect of removing the bar of the statute as to plaintiffs and made the contract
enforceable
against them the same as against defendant. The real contract in this case is oral, and the memorandum thereof signed by the party to be charged as required by the statute in order to make the contract enforceable against that party need not - be made contemporaneous with the sale, nor is it necessary that such
written
evidence of such contract be all on one paper. It is sufficient if it be signed at any time before enforcement of the contract is sought. [Grocer Company et al. v. Capen,
Let us put the shoe on the other foot. Plaintiffs signed the memorandum after the contract was entered into, and did so without the knowledge and consent of defendant. Now suppose corn had gone down instead of up, which, perchance, may have had something to do with defendant’s refusal to deliver; and on March 1, 3917, defendant had offered to deliver the seven hundred and fifty bushels of corn and demanded that plaintiffs take the same and pay him seventy-five cents per bushel according to thе contract, and plaintiffs had refused to accept the corn. Could they have pleaded the Statute of Frauds? They could not, because then they had signed the. memorandum and being the parties to be charged, would bе bound. Could they plead that their signing the memorandum without the knowledge and consent of the defendant rendered the contract void or rendered the memorandum thereof inadmissible as evidence? ' We do not think so. We hold that the alteration of the memorandum since it in no wise affected the rights and remedies of the defendant, the person sought to be charged, was not of consequence, and will not defeat recovery.
Defendant assigns as error the giving- on behalf of plaintiffs the instruction on the measure of damages, which is as follows: “You are further instructed that if you find for plaintiffs you will assess their damages at such sum as you may find and believe from the evidence was the difference per bushel, on the day or days plaintiff requested delivery 'of said corn, between the price defendant agreed to sell said corn to plaintiffs for, and the market value of corn of the kind and quality sold by defendant аt Bernie, Missouri, the ag *591 gregate amount of your verdict not to exceed the sum claimed in the petition, to-wit: $750.”
The true measure of damages would he the difference between the price of the corn on the day plaintiffs demanded delivery, and the contract price of seventy-five cents per bushel, but about the only evidence touching upon value is that by plaintiffs that on March 1, 1917, the corn was worth |l.25 per bushel. The jury returned a verdict howevеr, for only $187.50, and defendant cannot complain in this • character of case.
We find nothing in the record that indicates that the trial court granted the new trial on any ground where such action would be within the court’s discretion, hence we conclude that the trial court acted from some erroneous conclusion of law, which makes the matter of granting a new trial a question for review. [Graney v. Railroad,
The order and judgment granting a new trial is reversed, and cause remanded with directions to reinstate the verdict, and enter judgment thereon as of the date of its return.