Carter v. Western Tie and Timber Company

• Decision Date: 23 November 1914
• Citation: 170 S.W. 445,184 Mo.App. 523
• Parties: JERRY L. CARTER, Respondent, v. WESTERN TIE and TIMBER COMPANY, Appellant
• Court: Missouri Court of Appeals

170 S.W. 445

184 Mo.App. 523

JERRY L. CARTER, Respondent, v. WESTERN TIE and TIMBER COMPANY, Appellant

Court of Appeals of Missouri, Springfield

November 23, 1914

Appeal from Wright County Circuit Court.--Hon. C. H. Skinker, Judge.

AFFIRMED.

Judgment affirmed.

N.J Craig, A. J. Stack, Frank H. Sullivan for appellant.

(1) The contract declared on is within the Statute of Frauds. R. S 1909, sec. 2784. (2) Parol evidence cannot be received to prove such a contract, as all its terms must be proven by written evidence. Moore v. Mountcastle, 61 Mo. 425; Cash v. Clark, 61 Mo.App. 640; Leesley v. Fruit Co., 162 Mo.App. 202; Smith v. Schell, 82 Mo 218; Reigart v. Coke Co., 217 Mo. 154; Darnell v. Lafferty, 113 Mo.App. 288. (3) There was no such delivery and acceptance as would satisfy the statute. Sotham v. Weber, 116 Mo.App. 108; Cunningham v. Ashbrook, 20 Mo. 559. (4) When the contract is denied, the Statute of Frauds may be invoked by objection to oral testimony. Leesley v. Fruit Co., 162 Mo.App. 201, and cases cited. (5) Where there is no acceptance by the vendee, the vendor can only recover the purchase price by treating the property as belonging to and under the sole dominion of the vendee. Oehler v. Fruit Co., 162 Mo.App. 455; Milling Co. v. Burgher, 122 Mo.App. 20.

Curtis & Evans for respondent.

(1) The written order sent by appellant to respondent is a sufficient memorandum to comply with the requirements of the Statute of Frauds. Said order identifies the parties; is signed by the duly authorized agent of the party to be charged; states the consideration; gives sufficient specifications for sawing of the lumber and leaves to the discretion of the respondent the amount to be delivered. Lash v. Parlin, 78 Mo. 391; Black & Snider v. Crowther & Andiano, 74 Mo.App. 480; Peycke v. Ahrens, 98 Mo.App. 456; Leesley Bros. v. Fruit Co., 162 Mo.App. 195. (2) Memorandum giving respondent the privilege of delivering amount of timber he wished is sufficient under the statute. 20 Cyc. 270; Burgess Sulphite Fiber Co. v. Bloomfield, 180 Mass. 283; American Iron Mfg. Co. v. Midland Steel Co., 101 Fid. 200. (3) Oral testimony cannot be received to prove a contract within the statute or supply a deficiency in same, but may be admitted to show the circumstances under which the contract was made. 20 Cyc. 318; Union National Bank v. Leary, 77 N. Y. App. 332; North Platte Milling Co. v. Price, 4 Wyo. 293; Leesley Bros. v. Fruit Co., 162 Mo.App. 202. (4) Respondent had the right to demand that appellant accept the timber furnished in accordance with the contract and when appellant declined to accept same, respondent could treat the timber as belonging to appellant, hold it after tender, subject to the latter's order, and recover the full agreed price. Oehler v. Fruit Company, 162 Mo.App. 455 and cases cited.

STURGIS, J. Robertson, P. J., concurs. Farrington, J., concurs.

OPINION

STURGIS, J.

Plaintiff sues to recover $ 117.50 as damages for defendant's refusal to take and pay for certain timber which plaintiff manufactured and delivered at the place designated by defendant for that purpose. The timber was sawed and delivered at the railroad switch at Mt. Grove, Missouri, under the following written memoranda of the contract entered into by these parties: "Horace Paul, Inspector. Mansfield, Mo. Railway Ties, Piling, Car and Track Oak. Western Tie & Timber Company, 905 Syndicate Trust Bldg., St. Louis. Mansfield, Mo., Feb. 13, 1913. Mr. Jerry L. Carter, R. D. No. 8, Mountain Grove, Mo. Dear Sir:--Following is the orders for white and red oak car stock, which I can pay you $ 16.50 for W. O. and $ 13.50 for R. O. less two per cent discount for cash. Must be square edged and sound, and sawn full, this saw full means that saw cut must not be taken out. White oak: (5 1/2) x (8 1/2) x 11'. (5 1/2) x (7 1/2) x 11'. (4 1/2) x (8 1/2) x 16'. 4 x 4 x 16'. (5 1/2) x (9 1/2) x 12'. Red oak: (5 1/2) x (5 1/2) x 12'. (5 1/2) x (6 1/2) x 16'. (6 1/2) x (6 1/2) x 10'. (3 1/2) x (6 1/2) x 9'. You will note I fill in no number of above pcs. You will please fill in as you like. Would like to have a number of the first two sizes in white oak first car you get out. Please rush all you possibly can. Pile white and red oak separate if you haul at same time. You will pile on same track as you did switch ties only put within ten feet of track. Yours truly, H. Paul."

No question is raised as to the authority of H. Paul to make the above contract. The evidence introduced at the trial clearly shows, and it is conceded here, that acting under this contract the plaintiff caused to be sawed and delivered at the place specified in the written order five thousand feet of red oak car material and three thousand and thirty feet of white oak car material.

No serious contention is made that the car material was not of the dimensions specified in the order and "square edged and sawn full." The real controversy between the parties arose as to whether the timber so furnished and delivered was "sound." This is the point on which both parties introduced evidence at the trial, the plaintiff's evidence tending to show that all of the material delivered was good, sound timber with the exception of three or four pieces, which had wormholes therein and which plaintiff agreed might be rejected, and the defendant's evidence tending to show that much of the timber was worm-eaten, rotten in places and not fit for car material. This phase of the case was submitted to the jury on an instruction not criticized and on which the jury found that the timber in question was "square edged and sawn full and sound," and this finding is properly accepted as final by both parties. The finding and judgment is for the plaintiff for the amount sued for.

It further appears that it was understood between the parties that the timber would be inspected at or before the time it was loaded on the cars and by agreement the parties met there for that purpose. When the inspector, acting for defendant, began rejecting a large part of the timber plaintiff refused to acquiesce in such inspection and rejection, his refusal amounting to no more, however, than a refusal to consent to a part of the timber, less than half, being taken and paid for as good sound timber and the rest of it being rejected as worthless. The result was that the timber was not loaded on the cars but was left at the switch to await the result of another inspection by another inspector which the defendant agreed to have there in a reasonable time. Later the plaintiff requested that the timber be inspected, taken and paid for, the defendant again promised to send another inspector but delayed doing so until this suit was brought. The contract is dated February 13, 1913, the timber in question was delivered at the railroad during the latter part of that month, the attempted inspection and disagreement as to the quality of the timber occurred about March 1st, and this suit was filed July 18, 1913.

The errors complained of are that the court erred (1) in admitting evidence so as to make the contract a complete one, thereby removing the barrier of the Statute of Frauds; and (2) in refusing a demurrer to the evidence.

We readily agree with defendant that the contract is within the Statute of Frauds and can be allowed to be good only under the conditions prescribed by section 2784, Revised Statutes 1909, one of which is that there be a memorandum in writing of the bargain signed by the party to be charged with the contract. By the terms of the statute such memorandum need not be signed by both parties but only by the one sought to be charged--in this case by the defendant. It is correctly contended that all the essential terms of the contract must be evidenced by the writing and that it is not permissible to supply an essential part by oral evidence. [Moore v. Mountcastle, 61 Mo. 424, 425; Leesley Bros. v. Fruit Co., 162 Mo.App. 195, 202, 144 S.W. 138; Reigart v. Coal & Coke Co., 217 Mo. 142, 154, 117 S.W. 61.]

In determining the sufficiency of a writing to evidence a contract within the Statute of Frauds there are three essential and necessary ingredients: (1) the parties, (2) the subject-matter, and (3) the consideration or price. Where the writing lacks any of these essential elements there is no enforceable contract. [Peycke Bros. v. Ahrens, 98 Mo.App. 456, 460, 72 S.W. 151; Kelly v. Thuey, 143 Mo. 422, 45 S.W. 300.] Judged by this test, however, we think the written memorandum now in question is sufficient to sustain this action. The specific objection made to the sufficiency of the writing herein involved is that it is deficient as to the subject-matter of the contract in that it does not fix any definite amount of timber or car stock to be sold by the plaintiff to defendant. The memorandum however clearly provides for at least one carload and the lumber now in question is the first and only timber furnished thereunder. The expression "you will please fill in as you...