Greeley-Burnham Grocer Co. v. Capen
| Citation | 23 Mo.App. 301 |
| Parties | GREELEY-BURNHAM GROCER COMPANY ET AL., Respondents, v. GEORGE W. CAPEN, Appellant. |
| Decision Date | 09 November 1886 |
| Court | Court of Appeal of Missouri (US) |
APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.
Affirmed.
R. M NICHOLS, for the appellant: The evidence discloses that S. B Pike & Co. were only factors of George W. Capen, and as such he had no authority to sell goods for the account of his principal which had not been consigned to him. Wharton on Agency and Agents, sect. 735; Story on Agency, sect. 28, and note 165 [8 Ed.] 1 Benjamin on Sales, sect. 244; Edwards on Factors and Brokers, sects. 1 and 97. There was no contract under the statute of frauds. Steinberg v. Kintzing, 39 Mo. 221; Townsend et al. v. Drakeford, 1 Car. & K. 22; Goodman v. Griffith, 1 Hurl. & N. 573; Cooper v. Smith, 15 East. 102; Grant et al. v. Fletcher et al., 5 Barn. & Cres. 436; Thornton v. Kempster, 5 Taunt. 487; Gregson v. Ruck, 4 Ad. & El. 744; Reed on Statute of Frauds, 349; Wood on Frauds, note to sect. 430; 1 Chitty on Contracts, 551. The Gould sale tickets and the letters November 4, et seq., can not satisfy the statute of frauds. While the statute of frauds may be satisfied by different papers, they must have some reference to each other, and that reference must appear from the respective writings, and these respective writings must coincide with reference to the terms and conditions of the contract. Reed on Statute of Frauds, sects. 276, 341; Wood on Frauds, sects. 430-2; Story on Agency, sect. 243, and cases cited; Smith v. Schell, 82 Mo. 215; Scarritt v. St. John's M. E. Church, 7 Mo.App. 173; Broecker v. McGowan, 12 Mo.App. 207; 1 Benjamin on Sales, sect. 222. The letter of November 4, and all subsequent and prior letters between Pike and Capen, and the evidence admissible to prove a sale in the case, show the transactions in this controversy to be mere orders, and not sales by Pike for Capen. Banks v. Chas. P. Harris Mfg. Co., 20 F. 667; Stagg v. Compton, 81 Ind. 130; Lincoln v. Erie Press Co., 132 Mass. 129; Smith v. Gowdy, 8 Allen 566; Reed on Statute of Frauds, sect. 396, note E.
FORD & PAYNE, for the respondents: A sufficient memorandum of the various sales to satisfy the statute of frauds, may be collected from the correspondence passing between the defendant and his agent subsequent to the sales (especially the letters of November 4, 12, and 17, 1885). Gibson v. Holland, 1 Law Rep. [C. P.] 1; Bailey v. Sweeting, 9 C. B. N. S. 843; Moore v. Mountcastle, 61 Mo. 425; Faunsend v. Hargrave, 118 Mass. 335; Lash v. Parlin, 78 Mo. 391; Heideman et al. v. Wolfstein, 12 Mo.App. 366. In addition, the bought notes are sufficient memoranda. Barclay v. Bates, 2 Mo.App. 139, 145.
These are several actions for damages for the nondelivery of goods alleged to have been purchased of the defendant by the plaintiffs and their assignors, through S. B. Pike & Co., his agents for the sale of his goods, at the city of St. La. The suits were originally commenced by attachments before a justice of the peace, and such proceedings were had in the circuit court that all of them were tried together, the same evidence being for the most part applicable to all the cases, and all of them turning upon the same facts. The trial was had in the circuit court before a judge sitting as a jury, and the plaintiffs had in all the cases a verdict and judgment. Appeals have been prosecuted to this court upon a single record in the consolidated causes.
Three objections are made to the judgment, all of which arise under the defendant's motion for an instruction in the nature of a non-suit: 1. That the evidence discloses no contract between the parties. 2. That the written memoranda appealed to as evidence of the alleged contracts are insufficient under the statute of frauds. 3. That there was no evidence tending to show that S. B. Pike & Co. had authority from the defendant to make the sales in question.
We have examined this record with much care, and have been aided in our examination by a very thorough and creditable printed statement and argument furnished us by the appellant's counsel, but we have been unable to arive at a different conclusion from that reached by the learned judge of the circuit court.
I. Upon the first point we do not think that any extended observations are required. The evidence clearly shows that the contracts, as alleged, were, in fact, made, and that their terms were clearly understood by the plaintiffs, and also by S. B. Pike & Co., through whom they were made on behalf of the defendant. If S. B. Pike & Co. had authority from the defendant to make them. there is no ground for any discussion as to the fact of their having been made, although there was a discrepancy in their terms as made and as reported by S. B. Pike & Co. to the defendant. But if Pike & Co. had authority to make the contracts, their inaccurate report of their terms to the defendant was matter subsequent which could in no way affect the rights of the other contracting parties.
II. Upon the next point, whether the memoranda by which the contracts are evidenced are sufficient to take the case out of the statute of frauds, the propriety of the conclusion of the circuit court seems equally clear. These memoranda consist in all the cases but one of " sold notes," given to the respective purchasers, who are either these plaintiffs or their assignors, by Mr. Gould, a broker employed by S. B. Pike & Co., as their agent to effect the sales, and also of the reports of the sales made by S. B. Pike & Co. to the defendant as their principal. In respect of the sales in which these " sold notes" were given, the sold notes themselves were sufficient to take the case out of the statute of frauds. The following may be quoted as a specimen of each of them:
" ST. LOUIS, October 30, 1885.
Sold to G. A. Eckerle & Co. for acct. of S. B. Pike & Co.
25 cases Am. 1-4 sardines at $6.00 f. o. b. Portland. * * * Terms of sale, cash on arrival, less 3 per cent. Shipping directions, cheapest.
The objection that the time of delivery is not stated in this sold note seems immaterial, because the law would annex the condition of delivery within a reasonable time under the facts of the case in conformity with the manifest understanding of the parties. In respect of the sale which had been made by S. B. Pike & Co. to Mr. Boswell, in which no sold note had been given, it is sufficient to make this observation, which will equally apply to the other cases. That the terms of the sale were reported by S. B. Pike & Co. to the defendant; that the reply of the defendant to S. B. Pike & Co. shows that he understood the terms; that the subsequent correspondence shows that he finally repudiated the sales and endeavored to cast the loss upon S. B. Pike & Co., not because of any misunderstanding as to the terms of the sales, but because he could not get the fish. All this matter rests in the form of these sold notes and the subsequent correspondence by letter and telegram. These memoranda relating to the same subject matter taken together, as we are entitled to take them, under a well settled rule (Heideman v. Wolfestein, 12 Mo.App. 366; Moore v. Mountcastle, 61 Mo. 424), make the terms of the sale entirely clear without resort to parol evidence, and take the case out of the letter and policy of the statute of frauds. It is true, as already stated, that a slight discrepancy existed in respect of the price named in the sold notes, and that at which they were reported by S. B. Pike & Co. to the defendant in his letter of November 4. But on this point it is sufficient to say that the price, as reported, was within the express authority which Pike & Co. had received from the defendant; that the discrepancy was subsequently explained to the defendant by Pike & Co. in a letter dated November 17, which we are entitled to look to as part of the memoranda furnishing evidence of the transactions, and that it was also explained by parol evidence at the trial, which evidence our supreme court has held may be appealed to in certain cases to help out memoranda of sales of merchandise in respect of the statute of frauds. Lash v. Parlin, 78 Mo. 391; Oneil v. Crain, 67 Mo. 250. As the plaintiffs are seeking to hold the defendant to the contract as made with his agents, S. B. Pike & Co., and not as reported by S. B. Pike & Co., this objection becomes quite unsubstantial.
III. The most serious question in the case, and the one to which we have given the most attention is whether there was substantial evidence tending to show that S. B. Pike & Co. had authority from the defendant to make the contracts in question. It is fortunate that the question is not complicated by any element of the alleged agent being held out by the alleged principal in a given character, but depends entirely upon the interpretation to be given to a series of letters and telegrams, the genuineness of which is admitted, which, together with actual transactions, furnish the sole evidence of the understanding which subsisted between the defendant and S. B. Pike & Co. This correspondence shows conclusively that the defendant, who was a manufacturer of sardines, having two factories at Eastport, Me., constituted S. B. Pike & Co., his agents, to sell sardines of his manufacture in the St. Louis market, to receive consignments of such sardines, to receive the invoices of the same, and to collect and transmit to the defendant the proceeds of such sales as they should make, less an agreed commission. It also shows beyond dispute that S. B. Pike & Co. were not limited by the defendant to the selling of sardines of the defendant, which had actually been received by S. B. Pike & Co., but th...
To continue reading
Request your trial