Essex Chair Co. v. Fine Furniture Co.
| Decision Date | 03 January 1950 |
| Docket Number | No. 1764,1764 |
| Citation | 70 A.2d 578,116 Vt. 145 |
| Parties | ESSEX CHAIR CO., Inc. v. FINE FURNITURE CO., Inc. |
| Court | Vermont Supreme Court |
John Molla, Barre, for plaintiff.
Abare & Sargent, Barre, for defendant.
Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS, and BLACKMER, JJ.
In this action of contract, the plaintiff, a furniture manufacturer, seeks to recover from the defendant, a retailer, the purchase price of two bedroom suites. The answer sets up the general denial and the statute of frauds. The cause was heard by the Barre Municipal Court without a jury. Findings of fact were filed, and judgment thereon entered for the plaintiff. The defendant brings the cause here on the exceptions considered hereafter.
No stenographic reporter was present at the hearing. There is made a part of the bill of exceptions, however, 'a record of the testimony prepared by the Court, together with plaintiff's exhibits 1, 2, 3, 4, and 5.' The bill of exceptions further recites that 'the record furnished by the Court with the exceptions noted is the only transcript available.' It must be assumed that this record of the testimony, or transcript sets forth the tendency of the evidence of both parties and all that is material to a determination of the questions saved at the hearing. The exceptions to the admission of evidence are in consequence before us under the rule of Clark v. Demars, 102 Vt. 147, 149, 146 A. 812 and Hill v. Scott, 101 Vt. 356, 362-363, 143 A. 276.
It sufficiently appears that the plaintiff's case must fail under V.S. 7857, Rev. 1947, being the Statute of Frauds concerning the sale of goods, wares, and merchandise, unless plaintiff's exhibits 3 and 4 constitute a sufficient note or memorandum of the bargain, or an acceptance of the goods. Plaintiff's exhibit 3, so far as material, is as follows:
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Quan. Stock No. Description Price Extension
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2 906 Dressers & Mirrors at 46.18 92.36
2 906 Chests at 46.18 92.36
2 906 4/6 Beds & Rails at 26.61 53.22
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237.94
'Essex Chair Co.
574 Ferry Street
Terms 2% 10 days, net 30
5/27/1947
Sold to Fine Furniture Co.
Barre, Vt.
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Quan. Stock No. Description Price Extension
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2 906 Dressers & Mirrors at 46.18 92.36
2 906 Chests at 46.18 92.36
2 906 4/6 Beds & Rails at 26.61 53.22
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237.94
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Via Frt.'
The material parts of plaintiff's exhibit 4 follow:
'Fine Furniture Co.
Barre, Vt.
June 2, 1947.
Gentlemen:
We acknowledge receipt of your invoice covering two maple bedroom suites shipped to us. We regret that we are unable to use these and wish that you would authorize us to return same to you. We wrote you some time ago and asked you to cancel this order as the price is too high. * * *
Please let us hear from you at once regarding this matter.
Fine Furniture Co.'
I.F.B.
The defendant excepted generally under V. S. 1628(I), Rev. 1947, to the admission of plaintiff's 4, and briefs the objection that there is no evidence tending to show that Irving Fine, the signer, was then the agent of the defendant corporation. It is significant that the plaintiff ignores this claim; his brief points out nothing to the contrary. Although in this situation we are not bound to search the record for supporting evidence, we have done so and there is none, nor any from which the fact could be reasonably inferred. This exception must be sustained, and the judgment reversed.
That we have the power in our discretion, and to prevent a failure of justice, to remand the cause is beyond question, and it has been our practice to do so when the circumstances warrant it. The cases are exhaustively collected in Shea v. Pilette, 108 Vt. 446, 455, 189 A. 154, 109 A.L.R. 933. Subsequent decisions in accord are Hammonds, Inc., v. Flanders, 109 Vt. 78, 83, 191 A. 925; Mott v. Bourgeois et al., 109 Vt. 514, 519, 1 A.2d 704; Sheldon v. Little, 111 Vt. 301, 307, 15 A.2d 574, 137 A.L.R. 1; Chittenden v. Hamilton Realty Co., 114 Vt. 57, 62, 39 A.2d 199; Crowley v. Goodrich, 114 Vt. 304, 312, 44 A.2d 128, 162 A.L.R. 691; E. J. Roberts & Son v. Powers, 115 Vt. 185, 186, 55 A.2d 124; Longchamps v. Conti, 115 Vt. 492, 494, 66 A.2d 1; In re Peter's Estate, Vt., 69 A.2d 281, 286. Enough appears in the record to satisfy us that the plaintiff may well have a meritorious case if the facts are properly presented and found, and we think he should have an opportunity to have this done. Hammonds, Inc., v. Flanders, supra, 109 Vt. at page 83, 191 A. at page 927.
If the plaintiff establishes Fine's agency on rehearing, the effect of plaintiff's 3 and 4 will be controlling. Most of the briefing addresses itself to the question whether a sufficient written memorandum existed and to the effect of plaintiff's 4 as an acceptance. It appears prudent to pass on the questions so presented.
The trial court found the fact to be that the name 'Fine Furniture Co.' was adopted by both parties as the name of the defendant corporation at all pertinent times. The discussion below is had in the light of this finding. Also it is assumed that Irving Fine was in fact agent for the defendant corporation in the writing of its letter dated June 2, and being plaintiff's 4.
The rule in this jurisdiction is that the written memorandum to answer the statute must, either by its own language or by reference to something else, contain such a description of the contract actually made as shall obviate the necessity of resorting to oral evidence in order to supply any terms of the contract essential to its validity. Taplin v. Hinckley Fibre Co., 97 Vt. 184, 187-188, 122 A. 426. The statute has never required that the written evidence be created at the time of making the oral contract. Ide & Smith v. Stanton, 15 Vt. 685, 690, 40 Am.Dec. 698.
First for consideration is whether plaintiff's 3 and 4 can properly be read together as one memorandum. The only case in our reports bearing on this question, Rowell v. Dunwoodie, 69 Vt. 111, 115, 37 A. 227, is not decisive. There it appeared by the writing signed by the defendant that the notes and account sued upon were all the claims of that category, so that their identity was established by their production. Here the defendant's writing does not indicate that the invoice, plaintiff's 3, was the only invoice which had passed between the parties. It may be safely said, none the less, that Rowell v. Dunwoodie, supra, foreshadows the result hereinbelow.
The rule to be applied to the present case is as follows: What is essential is that the signature of the party to be charged shall authenticate the whole of the writing. What is necessary, then, is that a writing so signed refer to all writings not so signed that are sought to be made a part of the memorandum. It is not important in what language reference is made; it is certainly enough if a plain reference is made by the party to be charged, whatever its nature, to any other writing. The writing signed by the party to be charged must not only refer to the other writing, but it must, by implication at least, assent to the accuracy of the statements therein that it is desired to incorporate in the signed writing. Williston or Sales, Rev. Ed. 1948, Sec. 108.
The defendant's letter contains a plain...
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