Fowler Elevator Co. v. Cottrell

• Citation: 38 Neb. 512,57 N.W. 19
• Parties: FOWLER ELEVATOR CO. v. COTTRELL ET AL.
• Decision Date: 28 November 1893
• Court: Supreme Court of Nebraska

38 Neb. 512

57 N.W. 19

FOWLER ELEVATOR CO.

v.COTTRELL ET AL.

Supreme Court of Nebraska.

Nov. 28, 1893.

Syllabus by the Court.

1. The written memorandum required by section 9 of our statute of frauds (chapter 32, Comp. St.) may be made out by connecting two or more separate papers, such as the written correspondence between the parties.

2. It is not essential, in such case, that each paper be signed by the party sought to be charged, provided those not thus signed are referred to with reasonable certainty in those which are signed.

3. But the relation to each other of the documents relied upon to satisfy the requirement of the statute must appear on their face, and cannot be established by parol evidence.

Error to district court, Douglas county; Doane, Judge.

Action by the Fowler Elevator Company against L. R. Cottrell and another for damages resulting from defendants' failure to deliver 10,000 bushels of corn purchased. There was judgment for defendants on demurrer to the complaint, and plaintiff brings error. Affirmed.Wharton & Baird, for plaintiff in error.

Ed. P. Smith, for defendants in error.

POST, J.

This is a petition in error from the district court of Douglas county. A demurrer was sustained to the petition in that court, and, the plaintiff refusing to plead further, the action was dismissed, with costs. The controversy in this court therefore involves but one inquiry, viz. does the petition state a cause of action? The material allegations thereof are as follows: On the 4th day of March, 1891, the plaintiff, a corporation doing business in the city of Omaha, entered into an agreement by telephone with the defendants, then residing and doing business in the city of Seward, by which the latter sold and agreed to deliver to plaintiff, or its representative in the city of St. Louis, Mo., within 30 days thereafter, 10,000 bushels of No. 3 corn, at 54 1/2 cents per bushel. On the same day plaintiff addressed the defendants the following communication, which was in due course of mail received by the latter at Seward: “Omaha, Neb., March 4th, 1891. Mess. Cottrell, Alden & Co., Seward, Neb.--Dear Sirs: This confirms purchase of you by telephone to-day of 10,000 bu. No. 3 corn or better, at 54 1/2 c. per bu. delivered at St. Louis, Mo., Pac. Ry., 30 days' shipment, St. Louis terms. Please ship as follows: ‘Order Fowler Elevator Co. Notify John A. Warren & Co., St. Louis Mo. Care Mo. Pac. Ry., Lincoln, Neb.’ Make drafts, B. of L. attached, on Fowler El. Co., Omaha, Neb. Order and use Mo. Pac. cars to avoid transferring the grain. Yours, truly, Fowler Elevator Co. E.,”--to which, on the 30th day of March, the defendants replied as follows: “Seward, Neb., March 30th, 1891. Fowler Elevator Co., Omaha, Nebr.--Gents: It will be impossible for us to ship you or your St. Louis firm, Jno. A. Warren & Co., any corn. We hope this will not seriously inconvenience you. Yours, &c., Cottrell, Alden & Co.” On the following day plaintiff wrote defendants as follows: “Omaha, Neb., March 31, 1891. Cottrell, Alden & Co., Seward, Nebr.--Dear Sirs: Your favor of the 30th at hand, stating that it will be impossible to ship us any corn, and hoping that it will not seriously inconvenience us. We do not understand just what you mean, as your Mr. Cottrell was here a few days ago, and asked for an extension of time of shipment, and we agreed to allow him 10 days' extension. Mr. Cottrell at the time said that you had the corn, and 25 to 30 cars besides, as yet unsold. We are willing to grant you an extension until April 14th, but can see no reason why you should not be able to get the corn out by that time; and, considering the present condition of the cash corn market, we think we are treating you very liberally. It most certainly would inconvenience us not to have you ship this corn, as you must know that to protect ourselves we must sell each day against all purchases, and of course our St. Louis firm look to us for this corn. Please let us hear from you more fully on the subject. Yours, truly, Fowler El. Co. E.” And on the 2d day of April the defendants replied as follows: “Seward, Neb., April 2, 1891. Fowler Elevator Co., Omaha, Neb.--Gents: Replying to your letter of March 31st, at the time corn sale in question was made, we supposed we had control of the corn, and could handle it and sell it. Since then obstacles have presented themselves, and circumstances over which we have no control will prevent us from filling the sale. We cannot, therefore, fill the sale, much to our chagrin, and you will have to look elsewhere for the corn. Yours, &c., ...