Coal v. M

• Decision Date: 12 July 1910
• Docket Number: Case Number: 564
• Citation: 1910 OK 195,26 Okla. 615,110 P. 720
• Parties: CAMERON COAL & MERCANTILE CO. v. UNIVERSAL METAL CO.
• Court: Oklahoma Supreme Court

1910 OK 195

110 P. 720

26 Okla. 615

CAMERON COAL & MERCANTILE CO. v. UNIVERSAL METAL CO.

Case Number: 564

Supreme Court of Oklahoma

Decided: July 12, 1910

Syllabus

¶0 1. SALES--Delivery -- Reasonable Time--Parol Evidence. Where the contract specifies no time for delivery of the goods ordered, the law implies a delivery thereof within a reasonable time; and will not permit this implication to be rebutted by parol testimony going to fix a definite time because this varies the contract.

2. FRAUDS, STATUTE OF--Sales-- Acceptance of Order. An order for goods which is sought and procured by the seller is to be deemed accepted by him at once and, if signed by the buyer, becomes a contract binding on him within the statute of frauds, and no other acceptance or notice of acceptance is necessary.

Error from District Court, Le Flore County; Jas. L. Hale, Judge.

Action by Octave Block and Paul Block, partners, as the Universal Metal Company, against the Cameron Coal & Mercantile Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Fowler & Bolger and Brizzolara & Fitzhugh, for plaintiff in error.--Citing: Armsby v. Eckerly, 42 Mo. App. 299; Johnston v. McRary, 50 N. C. 369; 1 Elliott on Evidence, sec. 579; 4 Wigmore on Evidence, sec. 2430; 9 Enc. Ev. 492, 493; Gundy v. Green, 95 Cal. 630; Cummings v. Putnam, 19 N. H. 569.

T. T. Varner, for defendant in error.--Citing: Miller v. Bensley, 20 Ill. App. 528; Kessler v. Smith, 42 Minn. 494; 2 Mechem on Sales, sec. 1129; 2 Page on Contracts, sec. 1195; 17 Cyc. 570; 9 Enc. Ev. 333; Blake Mfg. Co. v. Jaeger, 81 Mo. App. 239; Gale Mfg. Co. v. Finkelstein, 59 S.W. 571.

TURNER, J.

¶1 On March 14, 1908, Octave Block and Paul Block, partners as the Universal Metal Company, defendant in error, sued the Cameron Coal & Mercantile Company, a corporation, plaintiff in error, in the county court of Le Flore county on account for goods, wares, and merchandise sold and delivered by plaintiff to defendant at its special instance and request, in the sum of $ 840.06, which request was as follows:

"Universal Metal Company, Mulhouse, France. Gentlemen: Please ship the following bars of steel: 3 Bars 7/8x1 1/4, for pick points. 3 bars 2-inch square sets (cleavers). 3 bars 1 3/4 square sets. 3 bars 1 1/2 square sets. 3 bars 1-inch Octagon steel. Consign the above to us at Williams, Indian Territory. Bars to be 12 to 18 feet long. Terms 3 per cent. against Bill Lading. Price 39 cents per pound F. O. B. Williams, I. T. Yours truly, Cameron Coal and Mercantile Company. [Signed] Geo. T. Williams, General Manager."--

¶2 And prayed judgment for said amount.

¶3 For answer defendant filed a general denial, and for further defense alleged that it contracted with plaintiff through its agent for the purchase of the goods mentioned in the account sued on, but that said contract of purchase was upon condition that the goods were to be delivered to defendant at its coal mine at Williams, Indian Territory, within 60 days from the date thereof, to wit, October 25, 1905, and that plaintiff failed to deliver said goods at said place within the time agreed upon; that said goods did not arrive at Williams until the latter part of March, 1906, for which reason defendant refused, and still refuses, to accept the goods. On trial to the court, a jury being waived, defendant, after prima facie case made by plaintiff, offered to prove that the goods were bought upon the express condition that they would be delivered within 60 days. The court held the written memorandum to be a complete contract between the parties, and excluded the evidence, to which defendant excepted, and, after judgment against it for the full amount of the account, brings the case here and assigns this for error. Such it was not. The contract was complete upon its face and could not be contradicted or varied by parol. 9 Ency. of Evidence, p. 487, says:

"Contracts of sale of merchandise frequently consist of a written order given by the buyer for the goods desired and an oral acceptance thereof by the seller, and in such a case the order in so far as it evidences the contract of sale cannot be contradicted or varied by parol."

¶4 2 Parsons on Contracts, 535, lays down the rule thus:

"* * * Where anything is to be done, as goods to be delivered, or the like, and no time is specified in the contract, it is then a presumption of law that the parties intended and agreed that the thing should be done in a reasonable time."

¶5 Again on star page 661, he says:

"If the contract specifies no time, the law implies that it shall be performed within a reasonable time; and will not permit this implication to be rebutted by extrinsic testimony going to fix a definite term because this varies the contract."

¶6 In Arnold v. Malsby et al., Executors, 120 Ga. 586, 48 S.E. 132, the action was by Malsby & Co. against Arnold to recover an engine, boiler, and saw which they had sold defendant, reserving title until payment of the purchase money. Defendant sought to recoup damages on account of delay in shipment thereof. The order read to "ship at once," and he agreed therein "to receive the machinery on arrival," plaintiffs "not to be held liable for damages for delay by the railroad or failure of manufacturers in not shipping the machinery." At the trial defendant testified, in substance, that he had bought the machinery from plaintiffs through the half-brother of one of them who came to him one morning for the purpose of selling it; that he took him in his buggy, rode out to defendant's farm, where he had, just started to cut corn, and told the agent he wanted, the engine for the purpose of shredding the corn; that the agent said he was a junior member of the firm, and the engine was bought for so much to be delivered at defendant's place within six days; that it was to be shipped from Atlanta, and at once; that the engine could not have been sold under any other circumstances; that it was not shipped at once; that, when he went to his desk to draw up the contract, it was specially understood between the agent and defendant that the engine was to be shipped at once; that he took him to his place and showed him the amount of corn, and told him that he had to have an engine right away, and that, if he did not get it right away, his stuff would be liable to ruin; that before he signed the contract he told him the engine would have to be delivered at once, he agreed to it, and defendant signed it; that the corn rotted while he was waiting for the engine, and that he had been damaged for the amount stated. The testimony as to what Malsby...