Abraham v. Durward

• Decision Date: 06 December 1920
• Docket Number: 6
• Citation: 180 N.W. 783,46 N.D. 611
• Court: North Dakota Supreme Court

180 N.W. 783

F. W. ABRAHAM, Respondent, v. A. S. DURWARD, Appellant

46 N.D. 611

No. 6

Supreme Court of North Dakota

December 6, 1920

Appeal from the District Court of Barnes County, Englert, J.

Defendant appeals from a judgment and from an order denying a new trial.

Affirmed.

W. J Lorsbough and Pollock & Pollock, for appellant.

The telegram is neither a contract nor sufficient memorandum of one. Hastings v. Webber, 56 Am. Rep. 671.

"The stipulated price of such sale is an essential part of the contract, and must be stated in the note or memorandum thereof required by statute." Hanson v. March (Minn.) 40 N.W. 817; Watt v. Wisconsin Cranberry Co. 18 N.W. 898.

"A memorandum, when a contract is not in writing, must embrace all its substantial terms." Plamer v. Marquette & P Rolling Mill Co. 32 Mich. 274.

There can be no acceptance while the purchaser has the right to object to either quality or quantity. 24 Ga. 215.

Sale void under the Statute of Frauds unless there was not only a delivery by the vendor, but an acceptance on the part of the purchaser. Simmons Hardware Co. v. Mullen (Minn.) 22 N.W. 294.

The law seems to be well settled that the objection that an alleged contract which is void under the Statute of Frauds may be availed of by general denial. Riif v. Riibe (Neb.) 94 N.W. 517; Livingston v. Smith, 14 How. 490; Allen v. Richard, 83 Mo. 55; Wiswell v Tifft, 5 Kan. 263; Bliss, Code Pl. 2d ed. § 355.

W. J Courtney, for respondent.

Where the Statute of Frauds was neither alleged in the answer nor mentioned at the trial, obviously it cannot be relied upon as a defense for the first time in this court. Groff v. Cook, 34 N.D. 126.

CHRISTIANSON, Ch. J. ROBINSON, BRONSON, and BIRDZELL, JJ., concur, GRACE, J. (specially concurring).

OPINION

CHRISTIANSON, Ch. J.

This action is brought to recover the purchase price of a carload of potatoes alleged to have been shipped by the plaintiff to one D. E. Hollinshead, of Thomson, Illinois, under an agreement with the defendant. In his complaint the plaintiff alleges:

"That the defendant on or about the 20th day of September, 1918, arranged with this plaintiff to ship to this defendant or to defendant's order, a carload of potatoes, and agreed to pay for them at the rate of 80 cents per bushel when the potatoes were loaded on the car at Pillsbury, North Dakota. That the agreement was made between the plaintiff and the defendant that the defendant was to pay 80 cents per bushel when the potatoes were loaded and ready to ship from Pillsbury, North Dakota and this price was to be paid for field run of potatoes, just as the potatoes were taken from the field.

"That on the 30th day of September, 1918, the defendant sent to his agent M. L. Peterson, at Pillsbury, North Dakota, the following telegram [omitting printed portions]: 'Thomson, Ill., 9th,-30 1918. To M. L. Peterson, Pillsbury Bank, Pillsbury, N. Dak. Have W. Abraham ship car of potatoes to D. E. Hollinshead, Thomson, Ill. immediately. Light (load) car to insure against frost. Draw on Sherman Bank, and answer collect. [Signed] A. S. Durward.'

"That the man Peterson notified this plaintiff of the order in the telegram, and asked the plaintiff if he would ship a car of potatoes immediately to the defendant's order, and at the same time showed the telegram to this plaintiff, and assured him that he would get his money within a very few days, and that he would draw on the Sherman Bank for the amount of the car as soon as it was loaded, at the agreed rate of 80 cents per bushel.

"That the plaintiff, relying on the agreement made, ordered a car, got one immediately, and shipped to D. E. Hollinshead, Thomson, Illinois, as directed by the telegram, and M. L. Peterson, the agent of the defendant who received the telegram, 900 bushels of potatoes from the field, as ordered by the defendant, and shipped them in a refrigerator car, and shipped them as directed by the defendant; that this plaintiff complied fully with all the orders of the defendant and shipped the potatoes, in conformity with defendant's orders."

The complaint further alleges that a sight draft was drawn upon a bank of Thomson, Illinois, as directed by the defendant, and payment thereof refused; and that defendant is justly indebted to the plaintiff in the sum of $ 720, the amount agreed to be paid for the potatoes, and that no part of the sum has been paid.

In his answer the defendant denied that he "on or about September 20, 1918, or at any other time, made any contract, arrangement, or bargain or agreement with the plaintiff or with any other person for the plaintiff, for the purchase of potatoes in car upon the track at Pillsbury or elsewhere."

He further denied that M. L. Peterson was his agent or in any manner authorized to represent him. He further denied that he wrote, signed, or authorized to be sent or transmitted the telegram set forth in the complaint. He also denied, generally, the allegations of the complaint.

The case was tried to a jury and resulted in a verdict in favor of the plaintiff for the sum demanded in the complaint. The defendant moved for a new trial. The motion was denied, and defendant has appealed from the judgment and from the order denying a new trial.

The evidence adduced by the plaintiff tended to establish the allegations of his complaint. The plaintiff testified: "The last days of September Mr. Durward came over there and I was digging potatoes. He asked me if I wouldn't ship him--if I wouldn't sell him any potatoes, ship a carload of potatoes, and I says, 'No, I wouldn't ship any. I wouldn't have nothing to do with shipping,' and he says, Well, he would go up town and see Peterson [a banker], that he would do the business for him. He says he always did his business, and he went up town and he came back after a while and then . . . Mr. Durward said he had made arrangements and could give me 80 cents f. o. b. Pillsbury; that he could use a carload of potatoes, and he sent a telegram that he wanted them." Plaintiff further testified that, upon the delivery to him of the telegram set out in the complaint, he loaded a car containing over 900 bushels of potatoes; that Peterson (the banker) figured out the amount coming to the plaintiff, and prepared a sight draft and a bill of lading, which papers were left with Peterson for attention.

Peterson testified that he received the telegram set out in the complaint, and delivered it to the plaintiff; that, later, he received a long-distance telephone message from Illinois, inquiring whether plaintiff had shipped the potatoes or how soon he could ship them; that after plaintiff had loaded the car he brought the weight slips or tickets to Peterson; that he (Peterson) computed the number of bushels and the amount coming to the plaintiff for the potatoes, and prepared a bill of lading for the car, and attached to it a sight draft for the amount coming to the plaintiff, and sent the papers to the bank at Thomson, Illinois, for collection, in accordance with the directions of the telegram; that payment of such draft was refused.

One Tillmony testified that in the fall of 1918 he was a tenant on one of defendant's farms; that one morning the defendant (who was staying with Tillmony) went over to plaintiff's place; that defendant said: "Well, I can buy potatoes from Mr. Abraham, and I will buy them when I can get ready on the other end for them." That when he came back defendant said: "I bought the potatoes, and when I trade them down at the other end, as soon as I get home and trade them then I send him word to ship them."

Hollinshead testified (in a deposition taken by the plaintiff October 31, 1919):

In the fall of 1918, I [Hollinshead] heard the defendant make some remarks in regard to potatoes and the price in Dakota where he had been, and I told him that I could use a car of potatoes of that kind at the price. He said he would give me the party's name and address, and I could get them, he giving the assurance as to the quality of the potatoes and the name of the man that owned them.

Q. What, if anything, was said with reference to using his [defendant's] name on the telegram?

A. Don't remember just exactly. He told me, in order to make them understand that everything was all right, that I could send the telegram in his name to insure getting the potatoes quickly.

Q. Then, as I understand it, you went to the telegraph office and sent the telegram we have introduced in evidence and signed his name to it?

A. Yes.

Hollinshead further testified that he called Peterson on the telephone and had a conversation with him over the long-distance telephone of the import testified to by Peterson, and that in such telephone conversation he (Hollinshead) stated that it was the defendant who was talking. He further testified that the telegram offered in evidence is like the one he wrote, with the exception that the word "light" was written, and should be "load."

In a subsequent deposition (taken by the defendant on December 29, 1919) Hollinshead attempts to qualify, to some degree, the testimony formerly given as to the authorization given by the defendant to sign his (defendant's) name to the telegram. He says: "Defendant did not tell me to order them in his name." He also says: "He [defendant] authorized me to refer to him, and, in order to shorten matters, I signed his name to the telegram mentioned above. . . . He said that he was well acquainted with the parties and I might refer to him in ordering them, in order to make them understand that everything was all right."

The defendant admitted that he had some conversation with the plaintiff about potatoes; but denied that the conversation was as related by the plaintiff. He also denied that he had...