Grant v. Auvil, 31753
| Decision Date | 29 November 1951 |
| Docket Number | No. 31753,31753 |
| Court | Washington Supreme Court |
| Parties | GRANT, v. AUVIL ex ux. |
Warren J. Gilbert, Harwood Bannister, Mount Vernon, for appellants.
Alden B. Whelan, Coupeville, for respondent.
Plaintiff is entitled to recover upon his first cause of action if the contract upon which he sues is evidenced by 'some note or memorandum in writing of the contract or sale * * * signed by the party to be charged'. Rem.Rev.Stat. § 5836-4(1).
It is admitted that the subject matter of the transaction exceeded $50 in value; that no part of the goods had been accepted, or actually received; that nothing had been given in earnest to bind the contract; and that part payment had not been made. The initial memorandum upon which plaintiff relies is as follows:
'Grant's Poultry Farms
'Clinton, Wash.
'General Delivery
Phone _____
Langley, Wash.
R.R. No. 1, Box 119
'Phone 2315A
'Date 10/12/49
'Please accept my Order for the following:
'4200 Day Old Poults ... @ ... $...
'I want this order delivered to me about March 1st-10th 50
(We will appreciate your giving us a 10-day period--For example Feb. 1-10)
This order given with the understanding that you guarantee the shipment to reach me in good condition, and as near above date as possible.
'Prices include delivery within 50-mile radius of Everett or Langley.
'Shipping or delivery instructions:........
'Remarks:..........
Fill in Carefully
'My Name is Lee Auvil
'Postoffice Address Oak Harbor
'Street or Route ..... Phone .....
'Nearest Express Office ........
'L. M. G.
'Salesman'
It is a printed form. The italicized portion is written. It is not signed by either of the defendants, and plaintiff admits that, standing alone, the memorandum is not sufficient.
March 4, 1950, defendant Lee Auvil mailed plaintiff the following postal card:
'Sincerely,
'Lee Auvil' (Italics ours.)
Rem.Rev.Stat. § 5836-4(1), so far as here material, reads as follows: 'A contract to sell or a sale of any goods or choses in action exceeding the value of $50 shall not be enforceable by action 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.'
The memorandum must meet the evidential requirements of the statute. It must exist before the contract can be proved. Any form is sufficient so long as it has the necessary requisites. After the existence of a sufficient memorandum has been established, parol proof is then proper to show that it applies to the subject matter of the action.
Can the signed postal card be read with the unsigned instrument of October 12, 1949, so that together they constitute a sufficient note or memorandum of the contract which will satisfy the statute?
In order to satisfy the requirements of § 5836-4(1), the note or memorandum may consist of several writings, though the writing containing the requisite terms is unsigned, if it appears from an examination of all the writings that the writing which is signed by the party to be charged was signed with the intention that it refer to the unsigned writing, and that the writings are so connected by internal reference in the signed memorandum to the unsigned one, that they may be said to constitute one paper relating to the contract. 1 Restatement, Contracts, 283, § 208; see Jones-Scott Co. v. Ellensburg Milling Co., 108 Wash. 73, 183 P. 113; Lewis v. Elliott Bay Logging Co., 112 Wash. 83, 191 P. 803; Baillargeon, Winslow & Co. v. Westenfeld, 161 Wash. 275, 295 P. 1019.
Since the purpose of the statute is to require a formality of proof in order to make the contract enforcible, it is immaterial with what purpose the requirements of the statute is fulfilled. It is not essential that the signed memorandum be intentionally made as a memorandum of the contract. 1 Restatement, Contracts, 286, § 209; 1 Williston, Sales (Rev.Ed.) 303, § 106. The document signed by the party to be charged (other requisites being present) may even attempt to cancel or repudiate the agreement, and, nevertheless, be operative to satisfy the statute. 2 Corbin, Contracts, 741, § 511. Hence, the efficacy of the postal card is not determined by the fact that it is a cancellation of the order.
Does the signed memorandum contain internal reference to the unsigned memorandum so that we can say, without resort to parol evidence, that the requirements of the statute have been met? Or, stated more objectively, does the word 'order' in the postal card refer to the prior tangible unsigned memorandum or does it refer to the transaction?
This may seem too fine a distinction to be drawn, yet the American Law Institute has foreseen the situation: 1 Restatement, Contracts, 286, § 208, Illus. 9.
How, then, is this question of interpretation resolved? Our former cases, althogh helpful, are not determinative of the question here presented.
If the signed memorandum makes no reference to the unsigned memorandum, they may not be read together. Parol evidence is inadmissible to connect them. Swank v. Liquidators, 160 Wash. 50, 294 P. 563; Baillargeon, Winslow & Co. v. Westenfeld, supra; Annotation, 85 A.L.R. 1205. Here, we have nothing to indicate that the postal card refers to an extrinsic writing. It does not identify the unsigned written memorandum of October 12, 1949, nor does it identify any of its terms. Martinson v. Cruikshank, 3 Wash.2d 565, 101 P.2d 604. To conclude otherwise would be to subvert the spirit of the statute. The unsigned memorandum has not been adopted by the signed memorandum.
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Table of Cases
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