Hewett Grain & Provision Co. of Escanaba v. Spear
| Decision Date | 27 April 1923 |
| Docket Number | No. 33.,33. |
| Citation | 193 N.W. 291,222 Mich. 608 |
| Parties | HEWETT GRAIN & PROVISION CO. OF ESCANABA v. SPEAR et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Delta County; R. C. Flannigan, Judge.
Action by the Hewett Grain & Provision Company of Escanaba against Frank B. Spear and others, copartners doing business as F. B. Spear & Sons. Judgment for defendants, and plaintiff brings error. Affirmed.
Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Ryall & Frost, of Escanaba, for appellant.
Berg, Clancey & Randall, of Ishpeming, for appellees.
The sole question in this case is whether the evidence of sale of a carload of potatoes satisfies the statute of frauds.
Defendants are copartners engaged in business at Marquette, and plaintiff is located at Escanaba. Defendants asked plaintiff, by telephone if it could furnish them with potatoes, and were advised that a carload in transit could be diverted to them at Marquette.
The learned circuit judge, in entering judgment for defendants notwithstanding the verdict in favor of plaintiff, so well covered the questions involved that we quote freely therefrom:
‘The plaintiff purchased in Minnesota from Geo. B. Higgins & Co. a carload of potatoes. They were shipped in a car initialed A. T. S. F. and numbered 8644, to Escanaba, Mich., under billing to Higgins & Co., but for delivery to the plaintiff, upon taking up the bill of lading.
‘The plaintiff's claim is that before the car arrived at Escanaba they sold the contents to the defendants and thereupon diverted the car, in route, to Marquette, Mich., where the defendants are engaged in business.
‘Upon the arrival of the car at Marquette the potatoes were refused by the defendants. Their claim is they bargained for seed potatoes, for distribution at cost, for war-time planting, and that the potatoes which the plaintiff offered to deliver were wholly unsuited for the purpose.
‘Upon the refusal of the defendants to accept the potatoes the plaintiff ordered the car forwarded to Escanaba, where, upon its arrival, the potatoes were unloaded and sold by the plaintiff. * * *
‘It has long been settled that, to satisfy the statute, the essentials of the contract need not be set forth in a single writing over the signature of the party to be charged. A contract sufficient to satisfy the statute may be found from letters or other writings part of which only are signed by the party to be charged, provided the writing not signed by him is clearly recognized, identified, and adopted in the writing signed by him, and provided further that the essentials of the contract may be definitely collected from the writings when they are brought together.
‘This doctrine is ancient and simple and amounts to no more or less than this: That a proposition containing the essential elements of a contract, definitely presented in writing and definitely accepted in writing, constitutes a contract binding on the party so accepting. But, in the promulgation and application of the rule that various writings may be examined in search of a memorandum sufficient to satisfy the statute, no disposition will be found on the part of the courts to accept anything less than full and definite assurance from the face of the writings themselves, unaided by parol, that the party to be charged obligated himself over his own signature, to the contract claimed. To that end it is essential the writing signed by the party to be charged contains a clear reference to such other writings as are presented, and as are necessary to establish the alleged contract. The writings signed by the party to be charged must so identify such other writings as to make of their contents a part of the writings signed by him. See Francis v. Barry, 69 Mich. 313,37 N. W. 353;Paul v. Graham, 193 Mich. 447, 160 N. W. 616;Graham v. Elevator Co., 60 Ind. App. 697, 111 N. E. 332.
‘The test must be whether, laying the writings side by side, and without any parol aid or explanation whatsoever, the court can find that the party to be charged signed his name to the terms of the alleged contract with the same degree of certainty and assurance it could so find was the undertaking of the party contained in a single writing.
‘Applying this test to the writings in this case and a memorandum adequate to take the transaction out of the statute cannot, in the opinion of the court, be found.
‘The letters and writings relied on by the plaintiff to establish the contract sued upon are as follows:
‘May 26, 1917. Hewett to Spear. Letter:
“Confirming our phone conversation to-day, we have entered your order for one carload of potatoes to be shipped to you at Marquette at $3.25 delivered.
“The car will be made up of assortments as follows:
“About 50 bags Round Whites.
“About 50 bags Early Ohios.
“About 50 bags Burbanks.
“About 70 bags Kings.
“This is the only car we know of in Minnesota for sale, and we have had the destination of this car changed to Marquette, Mich., and we will give you the car number and initials the fore part of the week as soon as we receive same from our loader.
‘May 29, 1917. Hewett to Spear. Letter:
“We are inclosing herewith invoice covering A T S F car No. 8644 car of Minnesota potatoes shipped on the 28th. This car should reach you within the next few days.
“These average 2 1/2 bushel to the sack.
‘The invoice referred to in the foregoing letter is dated May 28, 1917 and reads:
“Sold to F. B. Spear & Son, Marquette, Mich. f. o. b. cars. Initial A T S F Car No. 8644.
+---------------------------------------------+
¦ ¦“'Articles. ¦Weight.¦Price.¦Amount. ¦
+---+---------------+-------+------+----------¦
¦214¦sacks Minnesota¦ ¦ ¦ ¦
+---+---------------+-------+------+----------¦
¦ ¦Round White ¦525 bu.¦3.25 ¦1,738.75 ¦
+---+---------------+-------+------+----------¦
¦ ¦sacks ¦214 ¦.10 ¦21.40 ¦
+---+---------------+-------+------+----------¦
¦ ¦ ¦ ¦ ¦1,760.15.'¦
+---------------------------------------------+
‘May 31, 1917. Hewett to Spear. Letter:
“We took up the bill of lading at our bank today covering A T S F car No. 8644 car of potatoes shipped to Marquette from Minneapolis, Minn. This car is billed to the order of George B. Higgins & Co., notify the Hewett Grain & Provision Company, Marquette, Mich. Wish you would be on the lookout for this car, as we are not certain over which road it will arrive at Marquette. We have to-day drawn another draft on you with the bill of lading attached to cover this car.' ‘June 1, 1917. Spear to Hewett. Letter:
“We have your letter advising that you shipped the potatoes under bill of lading. We will not accept goods shipped under bill of lading. We must have open billing.
‘June 2, 1917. Spear to Hewett. Telegram:
‘We are inclosing herewith letter giving agent of Railroad Co., authority to allow you to inspect A T S F car 8644.’
‘June 29, 1917. Spear to Hewett. Letter:
‘Overlooking the discrepancy between the letters relating to the car numbers, and between the letter and invoice relating to the car initials, the letters of May 29th and 31st related to the same car A T S F No. 8644, which, for brevity, may be referred to as the Higgins' car. But there is no reference in either of these letters to the letter of May 26th, nor in the letter of May 26th to the Higgins car.
‘The letter of May 26th related to a carload of potatoes to be inferentially forwarded from Minnesota, but in a car which was in no manner identified by initials, number, or otherwise, and, speaking from the face of the letters, which must control here, they did not relate to the same, but to different transactions, not to the same carload of potatoes, but to two carloads of potatoes. The letter of May 26th had...
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