Banks v. Chas. P. Harris Mfg. Co.

• Decision Date: 20 March 1884
• Citation: 20 F. 667
• Court: U.S. District Court — District of Vermont
• Parties: BANKS v. CHAS. P. HARRIS MANUF'G CO.

20 F. 667

BANKS v. CHAS. P. HARRIS MANUF'G CO.

United States Circuit Court, D. Vermont.

March 20, 1884

U. J Hammond, for plaintiff.

A. C Harris, for defendant.

WHEELER J.

One Berry, representing the defendant, a manufacturer of chairs either as salesman or as a solicitor of orders, bargained to the plaintiff, a dealer in chairs at Baltimore, Maryland, two lots of unfinished chairs at an agreed price, to be delivered there, amounting respectively to $4,274 and $2,458, and by manifold writing filled duplicates of blank orders for each which were substantially alike, and when filled, read: 'Messrs. C. P. Harris M'f'g Co., order No.-- . Send to C. W. S. Banks, of 59 South St., Baltimore, Md.; terms, net 30 days; freight allowed. M. D. Berry, Agent. ' Then followed a list of goods, with prices, and 'to be shipped after two months from date of this order,' and the orders were signed at the foot by the plaintiff. One of each he left with the plaintiff, the other he sent to the defendant, and a copy of the written parts he kept himself. The defendant received the orders, refused to send the goods because the prices were so low, and the plaintiff brings this suit for the non-delivery.

A principal question is whether this order is a sufficient memorandum in writing of the bargain to charge the defendant, within the statute of frauds (29 Car. 2, c. 3) still in force in Maryland. There is no real question but that these instruments sufficiently set forth the terms of the sale, if they show a sale, nor but that the name of the agent is sufficiently signed to the memorandum, if it is a memorandum of a bargain of sale and he had authority to bind the defendant to a contract of sale. Drury v. Young, 58 Md. 546. The memorandum must set forth on its face enough to gather a contract of sale from, as against the party to be charged with the consequences of such a contract in the action. Egerton v. Mathews, 6 East, 307; Cooper v. Smith, 15 East, 103; Bailey v. Bogert, 3 Johns. 399. This memorandum appears to be of an order, and not of a sale, and would, so far as it shows for itself, fail to make out a sale without acceptance of the order. Chit. Cont. 349. The acceptance of the order might be by a delivery or forwarding of the goods, according to its terms, so as to charge the purchaser with the price without acceptance by him; but here there is no delivery; the action is for want of that.

There is nothing from the defendant to help this memorandum out at all. There was a letter to the plaintiff after the order was received, but it treated the memorandum as an order, and did not in any way recognize a sale. Cooper v. Smith, supra. In Drury v. Young, the memorandum was, 'sold W. H. H. Young,' etc. No case has been shown or observed in which the writing did not show a sale, or that from which a sale could be gathered, where it is held sufficient. In this instrument the name of the defendant itself appears, put there by its agent, but as being requested to send the goods, not as selling them. The name of the agent appears, but only as to ordering the goods. If he joined as agent in the order, it would be as agent of the plaintiff, for that comes from him to the defendant, and does not proceed at all from the defendant. If he was authorized he could accept the order in writing, and thus the whole would show a bargain of sale. But the acceptance is lacking, and the memorandum is of only one side of a bargain. The agent has testified to the bargain, and that the writing delivered to the plaintiff was intended to show it. This would be well enough if the writing did show it. Parol evidence is admissible to show the meaning of trade expressions and to apply the writing to the circumstances, but not to contradict the writing, nor to supply any part required by the statute to be in writing. To hold that what is on its face an order may be shown to be intended as a sale, or that an acceptance of an order necessary to make a sale may be supplied by parol, would be to disregard the plain provisions of the statute. In any view of Berry's authority, the statute cuts off this action.

Judgment for defendant.

The language of section 17 of the statute of 29 Car.I.c. 3, is as follows:

'And bee it further enacted by the authority aforesaid, that from and after the said fower and twentyeth day of June noe contract for the sale of any goods, wares, or merchandises for the price of ten pounds sterling or upwards shall be allowed to be good except the buyer shall accept part of the goods soe sold and actually receive the same, or give something in earnest to bind the bargaine or in part of payment, or that some note or memorandum in writeing of the said bargaine be made and signed by the partyes to be charged by such contract, or their agents thereunto lawfully authorized. ' The principal case raises the main question under this section of the act, what is a sufficient 'note or memorandum in writing' to satisfy the statute? And its consideration may conveniently be divided into (I.) the form of the memorandum, (II.) the contents, and (III.) the signature.

I. THE FORM OF THE MEMORANDUM. Lord ELLENBOROUGH said that 'anything under the hand of the party expressing that he had entered into the agreement set out therein' was sufficient. ^[1] And it was said in the supreme court of the United States, by CATRON, J., in construing the fourth section of the statute, the language of which is similar: 'But as the statute does not prescribe the form of a binding agreement, it is sufficient that the natural parts of it appear either expressed or clearly to be implied. ' ^[2]

'The statute of frauds does not require the contract itself to be in writing, but a memorandum of it, and a memorandum properly signed of a by-gone contract is quite sufficient. ' ^[3]

It thus appears that the memorandum is not the contract, but only the evidence of it, and this is true as to both the fourth and seventeenth sections. ^[4] Hence letters may be sufficient memoranda within the statute, and that, too, whether addressed to the plaintiff or to third parties, so long as they contain actually intelligible memoranda of the contract ^[5] and even a telegram properly identified is equivalent to a letter, ^[6] and a receipt or a promissory note may be a sufficient memorandum to show the price, or part of the price, of land, if the contract is described in the writing. ^[7] An account stated is a sufficient memorandum within the statute to justify a suit for a debt included therein, ^[8] and it has more than once been held that a will may be a sufficient memorandum of an alleged gift or contract made inter vivos, ^[9] and this, too, even though the original paper be lost after execution, or fall short of the statutory requirements of a will, and hence be invalid as such; ^[10] but the paper or will, whichever it may be, must contain the whole contract. ^[11] An insufficient deed may, like an invalid will, be good as a memorandum. ^[12] But if the deed does not show the real contract, it does not operate as a memorandum of that contract. ^[13] A board of arbitration and a reference in partition are both sufficient memoranda. ^[14] So, too, is an affidavit. ^[15] It is important for litigants to remember that statements or admissions in equity pleadings may also make good defects in their contracts, under the statute, since a statement in a bill in equity to assume an incumbrance and an answer in equity have both been held to sufficiently comply with the statutory requirements; ^[16] but, if the statute is set up at the same time that the verbal contract is admitted, the answer will not then be binding within the act. ^[17] Not only is it immaterial what the form of the memorandum may be; it is equally unimportant that the memorandum should be all contained in a single paper. Several papers, if distinctly connected together by reference to each other, may form a sufficient memorandum. ^[18] II. THE CONTENTS OF THE MEMORANDUM. The memorandum relied on 'must contain such words as will enable the court, without danger of mistake, to declare the meaning of the parties. It must obviate the necessity of going to oral testimony, and relying on treacherous memory, as to what the contract itself was. ' ^[19] Another test is, that, if specific performance is sought, the terms of the contract must appear with sufficient certainty to enable the chancellor to make a definite decree. ^[20] The memorandum, whether it be found in a single paper or a series of papers, must show the whole contract; i.e., the promise, the parties, the subject-matter, the consideration, and the conditions, if any. ^[21] An illustration of the failure of the memorandum to come up to the requirements of the statute in this respect, is found in McElroy v. Buck, ^[22] where the plaintiff and defendant had verbal negotiations for the sale of some hogs, and the terms were then and there agreed upon, subject to the defendant's right to go to Ohio first, and to telegraph his determination from there. This was done, and he sent the following telegram to plaintiffs: 'I will take double-deck car hogs. William C. Bryant will close contract. (Signed) JAMES McELROY. ' The court said: 'Standing by itself, the telegram contained none of the elements of a bargain except quantity, and it implied that there had been some communication previously in regard to terms which would have to be appealed to, to explain the substance of the bargain. Moreover, it did not purport to be a note or memorandum of an agreement at all, but only a simple notification of adhesion to an agreement which had been previously arranged theretofore, and the terms of which were assumed to be understood, and the facts show that the previous arrangement so referred to was one which...