Smith v. Stanton

| Vt. | Mar 15, 1843

The opinion of the court was delivered by

Royce, J.

Two questions arise upon the bill of exceptions: 1. Whether the present is a case within the statute for the prevention of frauds and perjuries; 2. If it is, whether the written evidence produced upon the trial was sufficient to satisfy the requirements of the statute.

It was the prevailing opinion, for a time, that the statute applied only to contracts for the immediate sale and delivery of goods, and did not extend to any case of an executory contract. This distinction arose from what was said by the court in Clayton v. Andrews, 4 Burr. R. 2101. But since the decision in Rondeau v. Wyatt, 2 H. Bl. R. 63, no such general distinction has been recognized or acted upon. Cooper v. Elston, 7 T. R. 14; Bennett v. Hull, 10 Johns. R. 364. And in order to exempt an executory contract from the operation of the statute it has been required to appear, that the thing contracted for was to be manufactured by the seller, as in Towers v. Osborne, 1 Str. R. 506; Crookshank v. Burrell, 18 Johns. R. 58; Sewell v. Fitch, 8 Cowen 215; or that some important change in its condition was to be effected by him before delivery, as in the case first cited, where the sale was of a certain quantity of wheat, which remained to be thrashed by the seller before the contract could be executed. And it would seem that even these facts would not be sufficient in England, at this day, to take a case out of the statute. I infer this from the decision in Garbutt et al. v. Watson, 5 B. & A. 613, where the plaintiffs, being millers, contracted to sell to the defendant 100 sacks of flour, to be ground from their stock of wheat, subsequently to the contract of sale. It was held to be a case within the statute. The case at bar does not require us to go the length of this last decision. The plaintiffs had part of the wool on hand at the time of making the contract, and they relied upon collecting, and receiving in, the residue before the stipulated time of delivery. There is nothing in the case to justify us in pronouncing it a sale of non-existing property, or of property not then owned by the plaintiffs and subject to their control. It is, therefore, but the case of an executory contract, substantially like that of Cooper v. Elston already cited. We regard it as a case within the statute.

The exceptions state that no part of the wool was delivered, and no money or other thing paid. It was, therefore, a case, where a written “ note or memorandum of bargain ” became necessary. The statute has never required, that the written evidence of the purchase should be created at the time of making the contract. A written admission of a previous verbal contract will satisfy the statute. Neither is it essential that all the written evidence, necessary to constitute a sufficient note or memorandum of the bargain, should be comprised in a single paper or document. Distinct writings, and of different dates, if signed by the party to be charged, and properly conducing to prove the contract, are competent evidence in this class of cases. But since the whole object of the statute is to guard against the danger of fraud and perjury, in proving the contract, it is obviously indispensable that enough should appear in writing to show that a contract of purchase _has been concluded, which is legally binding upon the patty sought to be charged. The written note or memorandum must, therefore, either by its own language or by reference to something else, contain such a description of the contract actually made, as shall obviate the necessity of resorting to parol evidence, in order to supply any term of the contract, which was essential to give it validity.

The defendant’s letters, which are relied on as furnishing the requisite written evidence in this case, disclose the names of the parties, and the subject-matter of the purchase, but are silent as to the price agreed to be paid. This, it is insisted, was but. the consideration of the bargain, which, according to Egerton v. Matthews, 6 East, 306, need not appear in writing. But in that case, the price was distinctly stated in the writing, and the question was, whether, as the contract could not have been enforced against the plaintiff, (for want of his signature to the memorandum) the defendant was bound by it, without some consideration, apparent upon the writing, beyond his own admitted obligation. It was decided that no such additional consideration was required to appear in writing. And this, it is believed, is the extent of all the decisions which have professed to follow out the doctrine of Egerton v. Matthews.

It is evident then, that the sufficiency of the note or memorandum under consideration, must depend upon the import of the word bargain as used in the statute. And its appropriate legal signification, independently of its connections with other expressions in the act, is the one to be sought. In this respect it differs from the word agreement as used in the same statute, which, from the peculiar phraseology of the section in which it occurs, has been held susceptible of a meaning somewhat short of its strict legal import, and to be synonymous with special promise or undertaking. Smith v. Ide, 3 Vt. R. 290. Now we find it laid down by Judge Kent and other writers upon the common law, when speaking of the legal requisites of a bargain, that “ the price is an essential ingredient in the contract of sale, and it must be real and fixed, or be susceptible of being ascertained in the mode prescribed by the contract, without further negotiation between the parties. ” 2 Kent’s Com. 477. This accords also with the rule of the civil law, “ that the price ought to be established, for there can be no bargain without a price. ”

Since a stipulated price is thus seen to enter into the legal contemplation of a bargain, we could not doubt, even in the absence of more direct authority, that when the statute came to require written evidence of the bargain, it intended that the price, like other essential terms of the contract, should be proved by such evidence. This conclusion, however, is not left to rest upon mere inference from the statute, since it is abundantly confirmed by the decisions both at law and in Blagden v. Bradbear 12 Ves. 466; Clark v. Wright, 1 Aik. 12; Bromley v. Jeffries, 2 Vern. 415; Elmore v. Kingscote, 5 B. & C. 583. In these cases the memorandum was adjudged to be fatally defective, upon the sole ground that it did not diselose the price. It is needless to mention the numerous cases, where this defect has been noticed in connexion with others. It is manifest that the bargain, in this case, was not proved by the written evidence, and the judgment of the county court must be affirmed.

Judgment affirmed.