Franklin Sugar Refining Co. v. John

• Decision Date: 07 January 1924
• Docket Number: 142
• Citation: 123 A. 685,279 Pa. 104
• Parties: Franklin Sugar Refining Co. v. John et al., Appellants
• Court: Pennsylvania Supreme Court

123 A. 685

279 Pa. 104

Franklin Sugar Refining Co. v. John et al., Appellants

No. 142

Supreme Court of Pennsylvania

January 7, 1924

Argued October 16, 1923

Appeal, No. 142, Oct. T., 1923, by defendants, from judgment of C.P. Allegheny Co., Oct. T., 1921, No. 1585, on verdict for plaintiff, in case of Franklin Sugar Refining Co. v Simon John et al. Reversed.

Assumpsit for breach of contract to purchase sugar. Before DREW, J.

The opinion of the Supreme Court states the facts.

Judgment on directed verdict for plaintiff for $15,380. Defendants appealed.

Error assigned was, inter alia, refusal of judgment n.o.v. for defendants.

The judgment is reversed, and here entered for defendant.

Joseph A. Langfitt, of Langfitt & Langfitt, for appellants. -- The written memoranda, together with the oral testimony offered in connection therewith, are insufficient to constitute a contract enforceable under section 4 of the Sales Act.

The case was for the jury: Frill v. Frill, 275 Pa. 325; Liberman v. Colahan, 267 Pa. 102; Hollis v Hollis, 254 Pa. 90; Albert v. Transit Co., 252 Pa. 527; Miller v. Ry., 58 Pa.Super. 558; Swing v. Walker, 27 Pa.Super. 366; Arnold v. Ins. Co., 22 Pa.Super. 575; Wills v. Hardcastle, 19 Pa.Super. 525; Ginder v. Bachman, 8 Pa. Superior Ct. 405; Berkley v. Maurer, 41 Pa.Super. 171.

The question of agency was clearly a question for the jury and not for the court: Dodd v. Stewart, 276 Pa. 225; Rasche v. Campbell, 276 Pa. 268; Am. Car & Foundry Co. v. Water Co., 218 Pa. 542; Slonecker v. Garrett, 48 Pa. 415; London S. Fund Society v. Bank, 36 Pa. 498.

The memorandum in this case does not meet the requirements of the statute of frauds in price and terms: Soles v. Hickman, 20 Pa. 180; Conrade v. O'Brien, 1 Pa. Superior Ct. 104; Llewellyn v. Coal Co., 242 Pa. 517; Franklin Sugar Refining Co. v. Howell, 274 Pa. 190; Manufacturers L. & H. Co. v. Lamp, 269 Pa. 517; C. Noel Legh. Co. v. Stitzinger & Co., 289 F. 1015.

The law in this state is that the goods, wares and merchandise section of the statute of frauds is more than a rule of evidence: Am. Products Co. v. Refining Co., 275 Pa. 332; Mfrs. L. & H. Co. v. Lamp, 269 Pa. 517.

David A. Reed, of Reed, Smith, Shaw & McClay, with him Maynard Teall, for appellee, cited: Warner-Godfrey Co. v. Sheinman, 273 Pa. 105; Electric Reduction Co. v. Steel Co., 276 Pa. 181.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SADLER:

The firm of John & Bros. conducts a grocery business, and purchased needed sugar at various times from the plaintiff. Its practice in buying was to apply to the J.H. Huston Co., a representative of the Refining Company, which here sues, and the former, as selling agent of the latter, had the orders forwarded, accepted, and filled. In three instances, between July 1 and July 15, 1920, -- there being at the time difficulty in securing an adequate supply, -- the broker made reservations of a number of barrels for subsequent delivery to the defendant. The allotments were evidenced by a writing, not signed by the purchaser, in which the price was fixed on the basis of the value of granulated, and, for other grades, a variable rate was chargeable, though the controlling differential was not expressly set forth therein. This paper, upon its face, showed the merchandise to be "sold by J.H. Huston Co., Inc.," and a copy was furnished to both plaintiff and defendant. The same form was used as referred to in Franklin Sugar Refining Co. v. Howell, 274 Pa. 190, where its contents, and the manner of operation thereunder, are described. A repetition of the details is unnecessary.

This suit was brought, in 1921, to recover damages claimed to have been sustained by reason of the failure of defendant to accept and pay for the number of barrels designated by the three papers mentioned, though demand for reimbursement was later abandoned, in so far as the first so-called order is concerned. The two remaining involved 225 barrels, and a refusal to accept, with a consequent loss to the plaintiff, was charged. The affidavit of defense interposed was held insufficient, and judgment entered for plaintiff, but, on appeal, it was reversed: Franklin Sugar Ref. Co. v. John & Bros., 274 Pa. 205. Later, the pleadings were amended, so as to meet certain objections raised. The existence of a trade custom was averred, explaining the business meaning of the cost terms set forth, which, it had been suggested, were uncertain and indefinite.

Evidence was offered, at the trial which followed, to show the making of the allotment, the refusal to accept the sugar set aside, and pay for it when tendered, to indicate the meaning of the phrase, "price 22.50," and prove the general understanding of this clause by those dealing in the sugar market, as well as the loss suffered by defendant's failure to perform. A verdict for plaintiff was directed for the full amount claimed. Judgment was entered, and from it this appeal is taken, it being contended here that section 4 of the Sales Act of May 19, 1915, P.L. 543, bars a recovery. It provides: "A contract to sell or a sale of any goods or choses in action of the value of five hundred dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf." Admittedly, there was no partial delivery or payment on account to take the case without the statute, but plaintiff insists there was a writing signed by the defendant which effected this result and that its requirements were sufficiently met by the proof offered.

The court below, in giving binding instructions for the plaintiff, proceeded on the theory that the Huston Co. was an agent for John & Bros. when the reservation was made, and bound them by its signature to the order given. This conclusion was reached prior to the decision of Franklin Sugar Refining Co. v. Kane Milling Co., 278 Pa. 105, in which the same question was considered, and an opposite view held. An identical paper was then construed, and it is there declared the broker must be treated either as the vendor, or an agent for it, and a reference to what is said in that case will suffice to answer the position here taken. If, therefore, a recovery can now be had against defendant, some other writing must appear, by which it is made evident the party to be charged agreed to purchase on the terms named in the paper signed by Huston & Co., and on which the present action is based.

It is claimed this was shown by the letters of June 11 and July 16 1920, wherein John & Bros. acknowledged the receipt of notice of the respective allotments, when considered in connection with the communication of August 4, 1921, in which the plaintiff, -- referring to the order numbers, -- said: "You have recently withdrawn five barrels of sugar under assortment order 4492 against contract 5599. . . . Are we to understand that you intend to withdraw the 225 barrels now due you?" and the signed reply of defendan...