Burlington Grocery Company v. Harry Lines

Decision Date03 March 1923
Citation120 A. 169,96 Vt. 405
CourtVermont Supreme Court

February Term, 1923.

ACTION OF CONTRACT. Plea, the general issue. Trial by jury at the September Term, 1921, Chittenden County, Wilson, J presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

M G. Leary, V. A. Bullard, and C. P. Cowles for the defendants.

Warren R. Austin and Ezra M. Horton for the plaintiff.



This is an action of contract in the form of general assumpsit to recover the purchase price of 30 bags of Java sugar, sold to the defendants, doing business as a partnership. The answer was a general denial. Verdict and judgment were for the plaintiff. The case is here on the defendants' exceptions.

On May 22, 1920, Harry Lines, acting for the firm, signed a memorandum of the bargain for the sugar, which was admitted in evidence over the defendants' objection and exception. The only question made as to its sufficiency pertains to the statement therein of the price of the goods. That statement is as follows: "Price, not over 26 cts. per Ib." This, the defendants say, is too indefinite to satisfy the Statute of Frauds.

It was held in Ide v. Stanton, 15 Vt. 685, 40 A. D. 698, that the price is an essential term of a bargain of sale, and must be stated in the memorandum thereof. But this is so only when the parties agree on the price. If they leave the price unfixed, the law steps in and fixes it at a reasonable figure, to be determined by what the goods are reasonably worth. In such cases, the memorandum required by the statute need not state the price, and parol evidence is admissible to determine it as aforesaid. Tiedeman, Sales, § 76; Williston, Sales, § 103; 1 Benjamin, Sales, 271; Brown, Frauds, § 377; Hoadley v. M'Laine, 25 E.C.L. 231; Joyce v. Swan, 112 E.C.L. 84; Turner v. Lorillard Co., 100 Ga. 645, 28 S.E. 383, 62 Am. St. Rep. 345.

And if the memorandum states the consideration according to the agreement of the parties, it will satisfy the statute, though the consideration be such that the contract is unenforceable. It is not claimed that the price is not here stated according to the agreement of the parties. By proper construction, it is a stipulation for a reasonable price, to be determined by market conditions existing at the time of delivery, but not, in any event, to be more than the maximum named. Such an agreement is valid and enforceable. See Parker v. Adams, 47 Vt. 139; Ames v. Quimby, 96 U.S. 324, 24 L.Ed. 635.

Subject to the defendants' objection and exception, the plaintiff gave evidence tending to show that the sugar in question was accepted and received by the defendants by being set apart and stored for them in the plaintiff's warehouse at their request. But, inasmuch as the only fault the defendants find with this evidence is that it was insufficient to take the case out of the Statute of Frauds, and inasmuch as we hold that the memorandum was sufficient for that purpose, any error in its admission would be harmless, and we need spend no time on it.

The defendants offered to show that at the time the bargain was made and the memorandum signed, the plaintiff's salesman told one of them that the sugar would be delivered in the month of June. This was excluded, and the defendants excepted. The offer was predicated upon these two grounds: That the evidence would tend to show that the contract was induced by fraud; and that it would tend to show what would be a reasonable time for delivery--the memorandum being silent as to the time when delivery was to be made.

The issue of fraud was not raised by the pleadings. At common law, the general issue in actions of this kind had a very broad scope; fraud, duress, and any other defense that showed that the contract was not in law binding on the defendant was admissible in evidence thereunder. 1 Chitty, 476. When the new rules--the Reg. Gen. Hil. T. 4 Wm. IV (1834)--were adopted, this was changed, and since that time, the English rule has been that fraud must be specially pleaded. 1 Chitty, 516. And that is the rule in some of the states. Barron v. International Trust Co., 184 Mass. 440, 68 N.E. 831; Dickinson v. Tysen, 209 N.Y. 395, 103 N.E. 703; Marhsall-Wells Hardware Co. v. Emile, 121 Minn. 524, 140 N.W. 1027. Our rule, however, has been that of the common law--so far, at least, as the defense of fraud is concerned. Limerick...

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9 cases
  • Howard National Bank v. Graham Wilson And Trustee
    • United States
    • Vermont Supreme Court
    • May 2, 1923
    ... ... Co. , 94 Vt. 187, 110 A. 4; Burlington Grocery ... Co. v. Lines , 96 Vt. 405, 120 A. 169; ... conducted as the W. E. Elliott Lumber Company and acted as ... its treasurer. He had two check accounts ... ...
  • City of Burlington ex rel. Board of School Commissioners v. Mayor of City of Burlington
    • United States
    • Vermont Supreme Court
    • February 20, 1925
    ... ... In re Chisholm's ... Will , 93 Vt. 453, 108 A. 393; Burlington Grocery ... Co. v. Lines et al. , 96 Vt. 405, 120 A. 169; ... McAllister v ... ...
  • William H. Noyes And John H. Hinman v. Charles Pierce
    • United States
    • Vermont Supreme Court
    • October 3, 1923
    ... ... is addressed. Burlington Grocery Co. v. Lines et ... al., 96 Vt. 405, 120 A. 169; ... ...
  • State v. Lillian C. Wood
    • United States
    • Vermont Supreme Court
    • October 6, 1926
    ... ... re Consolidated Rendering Company, supra, where the ... question was decided on such full ... Benjamin, ... 96 Vt. 475, 121 A. 263; Burlington Grocery Co. v ... Lines, 96 Vt. 405, 120 A. 169; ... ...
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