Ludke Elec. Co. v. Vicksburg Towing Co.

Decision Date13 March 1961
Docket NumberNo. 41714,41714
Citation240 Miss. 495,127 So.2d 851
PartiesLUDKE ELECTRIC COMPANY, Inc. v. VICKSBURG TOWING COMPANY.
CourtMississippi Supreme Court

Teller, Biedenharn & Rogers, Vicksburg, for appellant.

Brunini, Everett, Grantham & Quin, Vicksburg, for appellee.

RODGERS, Justice.

The Ludke Electric Company filed its suit in the County Court of Warren County against the Vicksburg Towing Company in which it demanded judgment in the sum of $1,421.35 alleged to be due it because of an order given it by the Vicksburg Towing Company, for certain parts of a pneumatic propulsion control to be used aboard the M/V Ouachita. The defendant answered and set up as defense Section 268, Mississippi Code, 1942, and moved the court to hear this defense separately as is permitted by Section 1475.5, Mississippi Code, 1942. The county court heard the issue joined on the Statute of Frauds and entered a judgment in favor of the defendant, Vicksburg Towing Company. The case was then appealed to the Circuit Court of Warren County, where an order was entered sustaining the judgment of the county court. The case was then appealed to this Court.

It appears from the evidence in this case that the Vicksburg Towing Company is a river boat towing company and owns a boat designated as the M/V Ouachita, and that the Captain, or engineer of this boat, is Captain George T. Wilkerson. It further appears that there was in use on the boat certain pneumatic propulsion control machinery which had become worn. The captain made out a requisition for these parts, addressed to Mr. M. L. King, who is the manager of the Towing Company, and has an office in Vicksburg. This written memorandum did not state the price for any of the parts. Mr. King directed the captain 'to see if he could get some of the parts from Ludke Electric Company.' It was necessary to order the parts from three different manufacturing companies: The Allis-Chalmers Manufacturing Company; General Motors, and Dillworth. Captain Wilkerson took his requisition and went to the office of the Ludke Electric Company, and contacted Mr. M. D. Clark, who worked for the Ludke Electric Company. Mr. Clark made out an order on the forms of his company for the parts, except that he duplicated the order, since one set of parts were to be used on the Port side of the boat and another set to be used on the Starboard side of the boat. This order to Allis-Chalmers Manufacturing Company did not give the price or cost for any of the listed parts. Mr. A. A. Ludke was present and told the captain that it would take a long time to fill the order. Captain Wilkerson did not know the parts would have to be hand-fabricated. The order of the Ludke Electric Company was then forwarded to the New Orleans office of the Allis-Chalmers Company. In a short time thereafter the Ludke Electric Company got a letter from the Allis-Chalmers Company requesting information with reference to the serial or drawing numbers of the parts. This information was conveyed to the Towing Company, and the Towing Company obtained the numbers from the Allis-Chalmers 'parts book' kept on the boat. There were several communications from Allis-Chalmers Manufacturing Company with reference to the exact serial number of the parts ordered. Finally, the Allis-Chalmers Manufacturing Company advised the Ludke Electric Company that most of these parts were obsolete and out of manufacture, and would necessarily have to be hand-fabricated. Mr. Clark read the letter from Allis -Chalmers to Captain Wilkerson, who testified that he then told Mr. Clark to 'hold up' on the order because the price would be prohibitive and they were going to try to get the whole assembly. Mr. Clark contends that he only wanted him to 'hold up' on Item No. 38. Captain Wilkerson testified that he called Mr. Clark later and told him that he would get the parts in a whole assembly from Boston Mill Works and again told him to 'hold up' on the order. The Ludke Electric Company never confirmed the order to Allis-Chalmers, although the Allis-Chalmers Manufacturing Company had advised Ludke Electric Company that they were proceeding to manufacture the parts. The manufactured parts were delivered to Ludke Electric Company, and some 20 or 30 days later the invoice was received showing for the first time the cost of the parts. When the Vicksburg Towing Company would not receive the parts, nor pay the bill, the Ludke Electric Company filed suit.

There are two questions of law presented for determination by this Court. First: Does the purchase order, addressed to Mr. M. L. King and signed by George T. Wilkerson, coupled with the purchase order from Ludke Electric Company, and addressed to Allis-Chalmers, constitute sufficient written memoranda to take this transaction out of the Statute of Frauds? Second: Does the fact that these parts had to be manufactured constitute a contract for 'service and material,' rather than a 'sale of goods, wares and merchandise' and is not therefore within the meaning of the Statute of Frauds?

The applicable statute here under consideration is Section 268, Mississippi Code, 1942, Anno., known as the Statute of Frauds. We are dealing with a very old and tried law. The so-called 'Statute of Frauds and Perjuries' was introduced and received in the English Parliament on April 16, 1677, and it became Statute 29, Car. II, Ch. 3. Later there was an addition to this statute known as Tenterden's Act which went into effect May 9, 1828, and appears in the statutory law as 'Ninth George, IV, Ch. 14.' Most of the states of the United States enacted into law statutes similar to the original English Statute.

The appellant in this case earnestly argues that the memorandum called 'requisition' or purchase order No. 1836 constitutes a sufficient written memorandum to satisfy the Statute of Frauds and contends that if this single written memorandum does not constitute a sufficient writing to satisfy the statute that the purchase order from Ludke Electric Company to Allis-Chalmers Manufacturing Company, No. 3449, taken together with the requisition is sufficient to comply with the requirements of the Statute of Frauds. The original memorandum signed by Wilkerson is divided into three distinct parts, and it is not contended that the Vicksburg Towing Company intended to purchase all of these parts from the Ludke Electric Company. The contention is that since the memorandum, No. 1836, had written thereon, 'Ordered 8-19-58' in two places that this reference was to the purchase order from Ludke Electric Company. This is an assumption and is certainly not clear, because the figures are written by parts purchased from other sources, and since the trial court has held otherwise, we agree. It appears to us that this does not refer to Order No. 3449. It is contended that the notation on the bottom of the order from Ludke Electric Company, No. 3449, 'For Vicksburg Towing Company, Inc., P. O. Box 1943, Vicksburg, Mississippi, Purchase Order No. 1836,' is a sufficient reference to requisition No. 1836 and, therefore, these two memorandums in writing taken together satisfy the Statute of Frauds. It will be noted that this notation is not on the memorandum signed by the party to be charged, and that there is no notation on the memorandum No. 1836 referring to the order of Ludke Electric Company to Allis-Chalmers.

This Court recognizes the rule set out in Gulfport Cotton Oil, Fertilizer & Mfg. Co. v. Reneau, 94 Miss. 904, 48 So. 292, the parol testimony may be resorted to to show the situation of the parties and application of the terms used in a written memorandum, but the memorandum itself must contain all the features of the agreement, and although the memorandum may consist of more than one writing, they must be so related that the memorandum signed by the party to be charged can be held to approve the other documents in which the terms of the contract are set forth.

We agree, therefore, with appellant's premise that the written 'memorandum' may consist of one or several writings, as stated in the general law. 49 Am.Jur., Statute of Frauds, Sec. 392, p. 695. The signed memorandum must, however, refer to the unsigned writing either expressly or by internal evidence of subject matter and occasion under such circumstances as to clearly show that the unsigned writing is necessarily incorporated into the signed memorandum. 49 Am.Jur., Statute of Frauds, Sec. 394, p. 699; Borden v. Case, 1960, 270 Ala. 293, 118 So.2d 751.

This is said to be the true rule and is stated in 49 Am.Jur., Statute of Frauds, Sec. 394, p. 700, as follows: 'The true rule, however, imposes the condition that the signed writing must have been written with at least an implied reference to the writing which it is sought to incorporate in the memorandum; otherwise, the signature on the one instrument cannot be regarded as authenticating the other writing. Therefore, it would seem that in order for an unsigned writing not referred to expressly in a signed writing to be deemed incorporated in the signed writing, it should appear that the signed writing is based in part, at least, upon the unsigned writing.'

The Reneau case, supra, was cited under this section and our Court has clearly adopted the rule requiring that the written signed memorandum must make at least an implied reference to the other writing.

This rule is pointed out in Williston on Contracts, Revised Edition, Vol. 2, Sec. 581, p. 1671, as follows: Where some of the papers which it is sought to include are unsigned, it is sometimes said that one paper must refer to the other, or that there must be mutual reference, but this is inaccurate. What is essential is that the signature of the party to be charged shall authenticate the whole of the writing. It is, therefore, necessary to incorporate all the documents into a writing signed by him. It will not be enough to incorporate all into an unsigned writing, or into a writing signed by the...

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