Arky v. F. W. Brockman Commission Co.

• Decision Date: 03 November 1914
• Docket Number: No. 13591.,13591.
• Citation: 170 S.W. 353
• Parties: ARKY v. F. W. BROCKMAN COMMISSION CO.
• Court: Missouri Court of Appeals

170 S.W. 353

ARKY v. F. W. BROCKMAN COMMISSION CO.

No. 13591.

St. Louis Court of Appeals. Missouri.

November 3, 1914.

1. FRAUDS, STATUTE OF (§ 113) — SUFFICIENCY OF MEMORANDUM — TERMS OF CONTRACT.

A memorandum indicating that defendant had sold to plaintiff 800 cases of eggs at 18½ cents a dozen, but containing no provision as to the time of delivery and payment, was insufficient, under the statute of frauds (Rev. St. 1909, § 2784), where it was claimed that there was an oral agreement that the eggs should be delivered and paid for within two days, since the memorandum did not contain all the material terms of the contract, as, the contract having provided for the time of delivery and payment, such provision should be contained in the memorandum.

2. FRAUDS, STATUTE OF (§ 131) — ORAL MODIFICATION OF WRITTEN CONTRACT.

While a contract not required to be in writing may be modified, varied, or annulled, by a subsequent oral agreement, a contract which the statute of frauds requires to be in writing may not be modified or varied by a subsequent oral agreement.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Chancellor.

Action by Sam Arky against the F. W. Brockman Commission Company. From a judgment for plaintiff, defendant appeals. Reversed.

Chas. B. Stark, of St. Louis, for appellant. McPheeters & Wood, of St. Louis, for respondent.

ALLEN, J.

This is an action for damages for the breach of an alleged contract of sale of personal property. On October 23, 1911, plaintiff went to the office of the defendant corporation in the city of St. Louis, and, after some conversation between plaintiff and defendant's president, the latter filled out and delivered to plaintiff the following paper, viz.:

                  F. W. Brockman Commission Co
                        St. Louis, ........... 1910
                        Sold to Sam Arky
                     2 Cars Eggs
                       800 Cases             18½
                Lot 11376
                "   11519
                

On this paper plaintiff's name, and all that appears below it, are in the handwriting of defendant's president; the remainder of the memorandum being a printed heading.

There is much conflict in the testimony as to what took place between plaintiff and defendant's president at and about the time of the execution and delivery of this memorandum. Plaintiff testified that, at or prior to the delivery thereof to him, nothing was said as to when the eggs were to be delivered and paid for; but that, as he was leaving defendant's office with the paper, he said to defendant's president, "I will see you in two days."

The testimony of defendant's president is to the effect that, cotemporaneous with the execution and delivery of this paper, he told plaintiff that he must understand that this was a cash sale; that plaintiff at first requested two days' time in which to make payment, saying that he did not then have the purchase price, but that the witness declined to consent to this, and that it was agreed that plaintiff would consummate the transaction on the floor of the Butter, Egg & Poultry Exchange the following day, not later than half past 11 o'clock in the forenoon. This plaintiff denies. The further testimony of defendant's president is that he was on the floor of the above-mentioned exchange the next day, ready to close the matter, and waited until 11:30 a. m., and that as plaintiff did not appear, he sold the eggs in question to another. Within two days after the execution of the memorandum, plaintiff called at defendant's office and demanded the eggs, offering to pay for them, but was told that they had been sold. Plaintiff thereupon instituted this action to recover damages for the breach of the alleged contract of sale.

The petition alleges that on or about October 23, 1911, defendant agreed to sell plaintiff two cars of eggs, described as lots No. 11376 and No. 11519, aggregating 800 cases, each case containing 30 dozen eggs, at and for the price of 18½ cents per dozen; and that defendant delivered to plaintiff the memorandum in question, in which the above "terms and conditions" were set out. The petition further states:

"That, after the making of said agreement, plaintiff agreed to pay for and receive said eggs at the price agreed upon within two days after the making of said contract." (Italics ours.)

And it is averred that on October 25, 1911, plaintiff demanded delivery of the eggs, and was ready, willing, and able to pay the agreed purchase price therefor, but that defendant declined and refused to deliver the same or any part thereof, whereby plaintiff suffered damages in the sum of $720.

The pleadings need not be further noticed. The cause was tried before the court and a jury, resulting in a verdict in plaintiff's favor for $122.72; and the case is here upon defendant's appeal.

The transaction is one falling within section 2784, Rev. Stat. 1909, which corresponds to the seventeenth section of the early English Statute (29 Car II, c. 3), known as the statute of frauds, and which is as follows:

"No contract for the sale of goods, wares and merchandise for the price of thirty dollars or upward, shall be allowed to be good, unless the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or unless some note or memorandum in writing be made of the bargain, and signed by the parties to be charged with such contract, or their agents lawfully authorized."

The case turns upon the sufficiency of the memorandum, above set out, to satisfy the statute, since it is conceded that the statute was not otherwise satisfied. Several questions are raised as to the sufficiency of the memorandum. One of these is whether the printed name of defendant corporation, appearing at the top of the paper, is a sufficient signing to satisfy the statute. Another is whether the memorandum constitutes a sufficient description or identification of the...