Heideman v. Wolfstein

• Citation: 12 Mo.App. 366
• Parties: A. HEIDEMAN ET AL., Defendants in Error, v. SIMON WOLFSTEIN, Plaintiff in Error.
• Decision Date: 13 June 1882
• Court: Court of Appeal of Missouri (US)

12 Mo.App. 366

A. HEIDEMAN ET AL., Defendants in Error,

v.SIMON WOLFSTEIN, Plaintiff in Error.

St. Louis Court of Appeals, Missouri.

Jun. 13, 1882.

1. A memorandum of a sale of personalty which is insufficient to satisfy the statute of frauds, may be supplemented and made sufficient by reference to letters written by the parties with relation to the transaction.

2. Well known mercantile abbreviations which have a fixed meaning well known to dealers and understood by the parties using them, may be explained by oral testimony, and may be effectual as a memorial of what was orally agreed.

3. Except in cases of auction sales, the memorandum of the sale need not be made contemporaneous with the sale in order to bind the parties to the transaction.

ERROR to the St. Louis Circuit Court, HORNER, J.

Affirmed.

DAVID GOLDSMITH, for the plaintiff in error: The original pencil memorandum was not a sufficient memorandum to satisfy the statute of frauds, because it does not show that the contract between the parties was a contract of sale.-- Lee v. Hill, 66 Ind. 474. Because it does not contain the names of both parties to the contract, and does not show (conceding the nature of the transaction) whether Wolfstein was buyer or seller.-- Grafton v. Cummings, 99 U. S. 100; Brown on Stat. Fr. (4th. ed.), sect. 372. Because it does not sufficiently identify the subject-matter of the sale, or the price.-- Bailey v. Ogden, 3 Johns. *399. These deficiencies cannot be supplied by parol evidence, nor by the letters offered--2. Kent's Comm. 511; Schroeder v. Taaffe, 10 Mo. App. 174; Scarritt v. Church, 7 Mo. App. 174.

T. A. RUSSELL, for the defendants in error: A memorandum of a contract which does not purport to be a complete expression of the entire contract may be supplemented by parol proof.-- O'Neil v. Grain, 67 Mo. 251. It is sufficient if the contract can be made out from any writings of the parties. Moore v. Montcastle, 61 Mo. 424. And it is not necessary that such writings should, on their face, demonstrate their reference to the agreement without the aid of parol proof.-- Beckville v. Talbot, 95 U. S. 289; Thayer v. Luce, 22 Ohio, 62.

LEWIS, P. J., delivered the opinion of the court.

The plaintiffs sued before a justice of the peace for breach of the defendant's contract to sell and deliver to them thirteen rolls of leather at prices agreed upon. The justice's judgment was for the plaintiffs, and, on the defendant's appeal, a similar result was reached in the circuit court. The only question in the case is, whether there was a sufficient note or memorandum in writing of the sale, to satisfy the statute of frauds.

The testimony tended to show that, in June, 1879, a salesman of the defendant called on the plaintiffs in the course of his business, and, when a sale was agreed upon, wrote in pencil and handed to the plaintiffs a memorandum as follows:--

5 Rolls No. 1 Harness leather

125-30

29

5 Rolls No. 2 Harness

120-25

26

3 Rolls No. 1 Skirting

128-30

33

60 days, by Sept.

S. WOLFSTEIN,

Per I. EWALD.

There was also put in evidence for the plaintiffs the following correspondence:--

[From plaintiffs to defendant.]

“ST. LOUIS, September 2, 1879.

Simon Wolfstein, Cincinnati, Ohio.

DEAR SIR: Please send me the thirteen rolls leather ordered, at once (if not shipped), as we need and must have it.

Yours, respectfully,

A. & H. HEIDEMAN.”

[From defendant to plaintiffs.]

“CINCINNATI, September, 4, 1879.

Messrs. A. & H. Heideman, St. Louis, Mo.

GENTS: Yours of the 2d inst. to hand. Reason I did not ship the leather is, that I obtained information regarding your standing, which exactly did not suit me, and therefore declined the order.

Yours, truly,

SIMON WOLFSTEIN.”

It is objected by the defendant that the memorandum given by the salesman is insufficient under the statute, because, (1) it does not show any contract of sale; (2) it does not contain the names of both parties, and does not show whether Wolfstein was buyer or seller; (3) it does not sufficiently identify the subjects of the sale, or the prices.

It may be conceded that, if we look at nothing but the memorandum, we will fail to find a sufficient compliance with the statute of frauds to hold the defendant to any contract with the plaintiffs. But it is an old practice to put in evidence several papers, as letters, etc., relating to the same contract, and by their references to, or connections with, each other, to establish all the requisites of a proper memorandum under the statute. Brown on Stat. Fr. 346 b et seq. In Allen v. Bennett (3 Taunt. 169), the defendant had, by his agent, signed a memorandum for the sale of tobacco. In an action for non-delivery, it was objected that the plaintiff's name, as buyer, did not appear in the memorandum. A letter was then produced, written by the defendant to his agent, mentioning the sale, and naming the plaintiff as the person who had bought. This was held competent to supply the deficiency, and to show the name of the buyer. See also Johnson v. Dodgson, 2 Mee. & W. 653. We think that the plaintiff's letter to the defendant, in this case, connects itself directly with the sale noted by the original memorandum, in its reference to the “thirteen rolls leather ordered.” The defendant's letter, signed by himself, is responsive to this, and so connects itself with the original transaction. The correspondence thus supplies all that is needed to show who were the contracting parties, and which was the buyer or the seller. This effect is in no way modified by the defendant's saying that he “declined the order.” If the order had already culminated in a sale, through the act of his agent, it was beyond his power to make it anything less. A letter may even repudiate any and all liability in the writer, and yet, by its reference to an oral contract, take it out of the statute. Bailey v. Sweeting, 9 C. B. (N. S.) 843; Wilkinson v. Evans, L. R. 1 C. P. 407.

It remains only to inquire whether the memorandum given by the agent is sufficiently intelligible to convey so much of the contract as is not furnished by the correspondence. This paper must be treated as an illustration of what Parke, B., in Marshall v. Lynn (6 Mee. & W. 118), describes as “a sort of...