37 Vt. 239 | Vt. | 1864
The exception to the decision of the court excluding certain evidence offered by the defendant, is not insisted on in argument.
The only question for this court to decide is as to the charge to the jury. The defendant requested the court to instruct the jury that the defendant was not liable for damage for any potatoes purchased by the plaintiff after the defendant’s letter to the plaintiff of
The contract being verbal, and no payment or delivery, or anything given in earnest to bind the bargain, and there being no memorandum of the contract in writing, it was within the statute of frauds, at the time it was made on the 18th of January. A subsequent written acknowledgement of the contract, signed by the party to be charged, is sufficient to take such contract out of the statute. But to have that effect, such written admission must contain substantially the terms of the contract. The defendant’s letter of January 27th, together with the subsequent correspondence, is not a sufficient compliance with the statute, as the terms of the contract do not appear in any of the letters of the defendant. The delivery and acceptance of the four hundred bushels of potatoes in February, and the subsequent payment for the same in May following, was such part delivery and payment as answer the requirement of the statute. If nothing more appeared, it would be clear that the contract thereby became binding according to its terms, and to the extent of the original verbal agreement. But the defendant’s letter of January 27th directing the plaintiffs not to buy any more, is equivalent to a refusal to accept any more potatoes on the contract than what the plaintiffs had on .hand and had already purchased. It is also stated in the exceptions that the defendant never after the date of that letter authorized the plaintiffs to purchase any more. Upon these facts alone, it is questionable whether the delivery and payment above mentioned would give binding force to the contract beyond the quantity the plaintiffs had on hand when the contract was made, and what they had subsequently purchased up to the receipt of the letter of January 27th. But as it is stated: that the four hundred bushels delivered February 18th or 19th, were taken by the defendant upon the contract, and that he then and afterwards treated the contract as being in force as originally made, we are not prepared to say that the statute of frauds can avail the defendant.
The letter of January 27th directs the plaintiffs to purchase no more potatoes on the contract till they hear from him. This direction never was countermanded. This is equivalent to a refusal to accept any more potatoes than the plaintiffs had on hand and what they had already purchased; and the plaintiffs were bound so to regard it. At this time the plaintiffs had on hand seven hundred or eight hundred bushels, and had made contracts for the delivery of other potatoes ; but it does not appear that theses contracts, together with what the plaintiffs had, were sufficient to make up the whole amount of fifteen hundred bushels. On the contrary it appears by a schedule referred to showing the quantity and dates of the plaintiffs’ purchases, that purchases made by the plaintiffs after the receipt of that letter, must necessarily be included to make up the fifteen hundred bushels. That letter cannot be treated as a rescinding of the contract. The plaintiffs having committed no breach of the contract to justify the defendant’s refusal, might have rescinded the whole contract on the receipt of that letter, but they did not so elect, as they made a delivery under it in February after. This they had a right to do and still hold the defendant liable for breach of the contract. It is evident from the terms of the letter that the defendant did not intend to rescind the contract. It is but a refusal to receive any more potatoes upon the contract than the plaintiffs had on hand or had already purchased. As to what the plaintiffs had on hand, or had purchased when they received that letter, and which the defendant did not receive and pay for, no question is reserved. It is as to what the plaintiffs purchased afterwards to make up the fifteen hundred bushels, that the question arises. This refusal on the part of the defendant was a breach of the contract, as it prevented the plaintiffs from making further purchases, and delivering to the full extent of the fifteen hundred bushels the defendant had agreed to accept and pay for. The rule of damages for this breach, so far as it respects the requisite quantity then still to be purchased to fill the contract, would be the difference between the price the defendant had stipulated to pay, and what it would have cost the plaintiffs to procure and deliver the potatoes on the cars ; in other words, what would make the plaintiffs
Judgment reversed and new trial granted.