Graham v. Henderson Elevator Company

• Decision Date: 03 February 1916
• Docket Number: 8,939
• Parties: GRAHAM v. HENDERSON ELEVATOR COMPANY
• Court: Indiana Appellate Court

111 N.E. 332

60 Ind.App. 697

GRAHAM v. HENDERSON ELEVATOR COMPANY

No. 8,939

Court of Appeals of Indiana

February 3, 1916

From Daviess Circuit Court; James W. Ogdon, Judge.

Action by the Henderson Elevator Company against Ziba F. Graham. From a judgment for plaintiff, defendant appeals.

Reversed.

Alvin Padgett, W. R. Gardiner, C. K. Tharp and C. G. Gardiner, for appellant.

T. D Slimp, M. S. Hastings, J. G. Allen, E. E. Hastings, and A. W Allen, for appellee.

FELT P. J. Ibach, C. J., Moran, Caldwell, Shea and Hottel, JJ., concur.

OPINION

FELT, P. J.

Appellee recovered a judgment against appellant for damages for breach of contract for the sale of corn. In appellant's brief under the title "Errors Relied Upon" six specifications are enumerated. The first seeks to question the sufficiency of the complaint for the first time in this court, and, therefore, presents no question. § 348 Burns 1914, Acts 1911 p. 415; State, ex rel. v. Bartholomew (1911), 176 Ind. 182, 185, 95 N.E. 417, Ann. Cas. 1914 B 91; Robinson v. State (1912), 177 Ind. 263, 266, 97 N.E. 929. The second, third and sixth specifications of errors relied on deal with abstract propositions of law, questions of fact and argument, but bear no resemblance to a specification of error. The fourth states that the evidence is not sufficient to sustain the finding and would, in certain instances, be appropriate ground for a motion for a new trial, but is not proper as an independent assignment of error. The fifth specification of error is that the court erred in overruling appellant's motion for a new trial. Under propositions or points and authorities, the only question mentioned that, by the most liberal construction, can refer to the motion for a new trial mentions the insufficiency of the evidence to support the finding, and all others are, therefore, waived. Rook v. Strauss Bros. Co. (1915), 58 Ind.App. 82, 107 N.E. 692, and cases cited; White v. State (1915), 182 Ind. 686, 107 N.E. 674; Ward v. State (1913), 179 Ind. 524, 526, 101 N.E. 809; Cleveland, etc., R. Co. v. Beard (1913), 52 Ind.App. 105, 100 N.E. 392; Palmer v. Beall (1915), ante 208, 110 N.E. 218. The briefs show that a new trial was asked on two grounds, viz., (1) the decision of the court is not sustained by sufficient evidence and (2) is contrary to law.

To determine the questions presented we must first ascertain the theory of the complaint. The complaint is in one paragraph and alleges in substance that the plaintiff is a corporation organized under the laws of the state of Kentucky; "that on February 1, 1913, the defendant, in writing, proposed to sell to the plaintiff fifteen thousand bushels of corn, which proposal in writing is as follows:

'Washington, Ind., 2-1-13.

Henderson Elevator Co., Henderson, Ky. Gentlemen: Please make us your best offer on fifteen thousand bushels pure white corn loaded here and on the same basis we sold you last year. This corn is even higher in quality and conditions than that we sold last year. Be sure the price you offer is your best. Yours truly, The Graham Farms. R. A. Graham.'

That on March 22, 1913, the plaintiff made an offer in writing, to purchase ten thousand bushels from defendant, which offer in writing is as follows: * * *

'Henderson, Ky., March 22, 1913.

R. A. Graham, Washington, Ind. Dear Sir: Referring to conversation had today with you over the phone we are pleased to confirm the purchase from you of ten thousand bushels white corn in ear 70 lbs. to the bushel at 50 cents f. o. b. your station. Same terms as before, that is we are to furnish a man to weigh the corn and our Mr. R. L. Williams is to examine it before being loaded. As advised you, just as soon as we can possibly get him there, we will do so. Yours truly, Henderson Elevator Co. W. A. Williams, Gen'l Mgr.'

That on March 25, 1913, the defendant accepted the said written offer of the plaintiff, which acceptance in writing is as follows:

'Loogootee, Ind. 3-25-13.

Mr. Williams, Henderson Elevator Co., Henderson, Ky. Dear Sir: Please have your Mr. Robert Williams come down as soon as weather will permit as we want to load this corn out on short order when roads will allow hauling. We are certainly having some flood in this section. With best wishes we are, Yours truly, The Graham Farms, by R. A. Graham, General Manager.'

That the said The Graham Farms was in fact the defendant, and the said R. A. Graham and R. A. Graham, General Manager, being the same person, was the agent of the defendant; that on April 14, 1913, the said R. L. Williams and Robt. Williams, being the same person, examined the corn; that the plaintiff and defendant entered into the agreement, as aforesaid, whereby the defendant agreed to deliver to the plaintiff ten thousand bushels of white corn at fifty cents a bushel f. o. b. at Graham's station on the Chicago, Eastern Illinois Railroad in Daviess County, Indiana; that the said corn was to be delivered as aforesaid, as soon as cars could be procured in which to load the same, and the plaintiff was to pay therefor on delivery." The other averments charge performance on the part of appellee and refusal to perform on the part of appellant; that on April 11 and 14, 1913, appellee was ready, willing and able to receive and pay for the corn and so notified appellant. Prayer for damages in the sum of $ 1,000.

The theory of a complaint is to be determined from the general scope and tenor of its averments and not from fragmentary statements, detached parts or conclusions of the pleader. That theory will be adopted which is most apparent and clearly outlined by the leading averments. Osborn v Adams Brick Co. (1913), 52 Ind.App. 175, 182, 99 N.E. 530, 100 N.E. 472. Judged by this rule, appellee's complaint is to recover for the breach of a written contract evidenced by the several instruments set out in the pleadings for it is averred that the parties "entered into the agreement, as aforesaid", and there is no agreement aforesaid unless the writings set out show an agreement. There is no claim that anything was done under the contract to take it out of the operation of the statute, if the statute may be invoked under the issues. On this theory of the case, the sufficiency of the memoranda to take the case out of the statute of frauds depends upon the meaning and effect of the writings set out in and made a part of the complaint. Appellee's letter of March 22, 1913, shows on its face that it has no reference to appellant's letter of February 1, 1913, but on the other hand refers to a conversation over the telephone about the sale of a different amount of corn. Appellee contends that appellant's letter of March 25, 1913, is an acceptance of its offer to buy 10,000 bushels of corn at 50 cents per bushel of 70 lbs. Appellant contends that the letter of March 25 has no reference to the letter of March 22, for the reason he had not then received it, knew nothing of it, and in fact did not know of its existence until April 8, 1913. Looking to the complaint, it appears that the only writing signed by appellant that is relied on to take the case out of the statute of frauds, is the communication dated March 25, 1913. It makes no reference to appellee's letter of March 22, 1913, and without resort to parol proof it can not be known that it was written in answer to the letter of March 22, 1913, or that it was intended as an acceptance of the proposition to buy 10,000 bushels of corn on the terms stipulated in appellee's letter of March 22. The memoranda relied on to take the transaction out of the statute of frauds may consist of letters or other writings signed by the party to be bound and may be aided by reference to other writings constituting a part of the contract, but the memoranda so relied on, whether consisting of a single writing or different writings thus made one, by reference from one to the other, must contain all the essential elements of the alleged contract, and in a suit to recover on such contract, recourse to parol evidence is not allowed to supply any essential ingredient or element of the contract. Porter v. Patterson (1908), 42 Ind.App. 404, 409, 85 N.E. 797, and cases cited; Moulton v. Kershaw (1884), 59 Wis. 316, 18 N.W. 172, 48 Am. Rep. 516; Rector v. Sauer (1891), 69 Miss. 235, 13 So. 623; Penn-American, etc., Co. v. Harshaw, etc., Co. (1910), 46 Ind.App. 645, 649, 90 N.E. 1047; Pierce v. Corf (1874), L. R. 9 Q. B. 210; 12 Ency. Evidence 18, and cases cited in note 58; 1 Mechem, Sales §§ 422-428; 1 Greenleaf, Evidence 268; Leatherbee v. Bernier (1903), 182 Mass. 507, 65 N.E. 842. "The party to be charged", under the statute of frauds, means the defendant to the action. The memorandum must be signed by him but need not, necessarily be signed by the plaintiff in the suit. Newby v. Rogers (1872), 40 Ind. 9, 12; 20 Cyc 272. Where it is sought to enforce a contract alleged to be evidenced by a memorandum sufficient to take it out of the operation of the statute of frauds, or to hold a party liable in damages for a breach of the alleged contract, and the party against whom liability is sought to be enforced has not signed any memorandum containing the essential elements of the contract, but has signed another instrument or writing in which it is claimed such reference is made to the former as to amount to an adoption and acceptance of the terms thereof, to be sufficient under the statute (§ 7469 Burns 1914, § 4910 R. S. 1881) the signed memorandum or instrument must contain a clear and definite reference to such other writing or instrument and so identify it as to make its provisions a part of the signed memorandum or instrument relied on. Ridgway v. Ingram (1875), 50 Ind. 145, 147, 19 Am. Rep. 706; Pulse v. Miller (1881), 81 Ind. 190, 191; ...