Ashley v. Preston

• Citation: 39 S.W.2d 279,162 Tenn. 540
• Parties: ASHLEY et al. v. PRESTON et al.
• Decision Date: 10 June 1931
• Court: Supreme Court of Tennessee

39 S.W.2d 279

162 Tenn. 540

ASHLEY et al. v. PRESTON et al.

Supreme Court of Tennessee.

June 10, 1931

Certiorari to Court of Appeals on Appeal from Circuit Court, Smith County; Harry Camp, Judge.

Suit by Ashley and Gibbs against Aven Preston and another. The Court of Appeals reversed a judgment dismissing the suit and remanded the case, and defendants bring certiorari.

Judgment of Court of Appeals affirmed.

L. A Ligon, of Carthage, for plaintiff in error.

H. B McGinness, of Carthage, for defendant in error.

MCKINNEY J.

Ashley and Gibbs, referred to herein as plaintiffs, instituted this suit against Winfrey and Preston, whom we shall designate as defendants, to recover damages in the sum of $560.85 for the breach of a contract.

In September, 1928, plaintiffs purchased from defendants thirty-five head of cattle for 11 cents per pound, plus $1 per head, and paid for them by check in the sum of $2,549.60. Plaintiffs were to graze and feed the cattle for one year when defendants were to repurchase them at 11 cents per pound. This was one entire contract. Defendants refused to comply with their agreement to repurchase, whereupon plaintiffs sold the cattle at the market price, and brought this suit to recover the difference between the market price and the contract price. The contract was verbal. Defendants plead the statute of frauds, section 4 of our Uniform Sales Act (Pub. Acts 1919, c. 118), which, as amended by section 2 chapter 93, Pub. Acts of 1923, is as follows:

"(1) A contract to sell or a sale of any goods or choses in action of the value of five hundred dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold, or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf."

The trial court sustained the plea and dismissed the suit. The Court of Appeals reversed the circuit court and remanded the case for a new trial. A petition for writ of certiorari has heretofore been granted and argument had.

Section 74 of the Uniform Sales Act (Pub. Acts 1919, c. 118) provides:

"This Act shall be so interpreted and construed as to effectuate its general purpose to make uniform the laws of those states which enact it."

The Uniform Sales Act has been adopted in thirty-one states, and in numerous decisions the necessity of a uniform construction of its provisions is emphasized. The phraseology of section 4 of this act and that of the seventeenth section of the English Statute of Frauds is practically the same, the only material difference being that under the latter act a parol contract is void, while under our act such a contract is merely voidable at the election of one or either of the parties thereto. Our statute provides that such a contract "shall not be enforceable by action." It is directed at the remedy and not the validity of the contract. Producers' Coke Co. v. Hoover, 268 Pa. 104, 110 A. 733.

The plaintiffs insist that the term "party to be charged" should be construed to mean the "seller," but we find no authority to support this contention. With respect to section 17 of the English statute, which, prior to the enactment of the Uniform Sales Act, had been adopted in many states, the construction given it is thus stated in 25 Ruling Case Law, 669: [39 S.W.2d 280.] "Where the statute requires the contract or memorandum to be signed by the party to be charged, it is essential, according to the general view, that it be signed by the party against whom it is sought to be enforced, who is to be deemed the party to be charged. Thus, according to the great weight of authority, the fact that the memorandum, in case of a contract for the sale of either goods or land, is signed by the seller or vendor, who is the party seeking to enforce the agreement, is insufficient; it must also be signed by the buyer or vendee against whom it is sought to be enforced. The same is true where the memorandum is signed by the vendee or buyer only and he seeks to enforce the contract against the vendor or seller."

In 27 Corpus Juris, 289, it is said:

"The two general rules as to the party or parties who must sign the memorandum are that a party not signing the memorandum cannot be charged on the contract; and that the only signature made necessary by the statute is that of the party to be charged, or,

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