Houser v. Hobart

• Decision Date: 08 May 1912
• Citation: 22 Idaho 735,127 P. 997
• Parties: M. M. HOUSER, Appellant, v. ED HOBART and JAMES HOBART, Respondents
• Court: Idaho Supreme Court

127 P. 997

22 Idaho 735

M. M. HOUSER, Appellant, v. ED HOBART and JAMES HOBART, Respondents

Supreme Court of Idaho

May 8, 1912

FRAUDS-STATUTE OF-CONTRACT-MEMORANDUM OF-CONCURRENT PROMISES-OBLIGATIONS-MUTUALITY-VOID FOR WANT OF-PARTIES TO BE CHARGED-SIGNED BY-SUFFICIENCY OF MEMORANDUM.

(Syllabus by the court.)

1. Sec 6009, Rev. Codes, provides that certain agreements are invalid unless the same, or some note or memorandum thereof be in writing and subscribed by the party charged, or his agent, and the evidence of such agreement cannot be received without the writing or secondary evidence of its contents.

2. Where H. & H., as parties of the first part, agree with H as party of the second part, that the first party "hereby sells and agrees to deliver to the second party.... all our Barley raised this season except 400 sacks on or before October 1st, 1911 Sacked and in good condition.... party of the second party agrees to pay $117 1/2 for white winter Barley and 112 for blue Barley.... (Signed) Ed Hobart and James Hobart," and not signed by the second party, and no part of the consideration is paid held, not sufficient to take the contract out of the provisions of sec. 6009, Rev. Codes.

3. An agreement entered into between competent parties, in order to be binding, must be mutual, and this is especially true when the consideration consists of mutual promises, and if it appears that one party never was bound on his part to do the acts which form the consideration for the promise of the other, the agreement is void for want of mutuality.

4. The rule of law that a promise is a good consideration for a promise requires that there should be an absolute mutuality of engagements so that each party may have an action upon it or neither will be bound.

5. Under the provisions of sec. 6008, Rev. Codes, a court may compel the specific performance of an agreement in case of part performance thereof.

6. Under the provisions of sec. 16, Rev. Codes, the singular number includes the plural and the plural the singular.

7. The provisions of sec. 6009, Rev. Codes, where the note or memorandum therein referred to is required to be subscribed by the party charged, were intended to and do require such memorandum to be signed by both parties, where the consideration of such contract consists of the mutual promises of each.

8. Under the provisions of sec. 6009, Rev. Codes, some of the contracts referred to therein require the signature of only one party, the party charged, and in other contracts the consideration for which is the mutual promises of the parties to the contract, and where no part of the contract has been performed, the memorandum referred to in said section must be signed by the parties to such agreement or contract in order to take the same out of the provisions of said section and bind both parties.

9. In such contract the promises must be mutual and reciprocal to constitute a consideration obligatory and binding upon each party, so that each may have an action against the other upon it.

10. Said memorandum, to be sufficient under the statute, must be complete in itself as to all the essentials of the contract and leave no essential to be established by parol.

APPEAL from the District Court of the Second Judicial District for Lewis County. Hon. Edgar C. Steele, Judge.

Action to recover damages for violation of contract to sell barley. Judgment for defendants. Affirmed.

Judgment affirmed, with costs in favor of the respondents.

Eugene A. Cox, for Appellant.

The weight of authority is that the statute is satisfied if the memorandum be signed by the party sought to be charged alone, or, in other words, by the party defendant in an action brought to enforce the contract, whether he be vendor or vendee. (29 Am. & Eng. Ency. of Law, 2d ed., 858; 20 Cyc. 272, D. 2.)

The Idaho statute seems intended to make clear that the party whose signature is requisite is that of the defendant in the action. Our law does not require the signature "of the party to be charged," but "of the party charged."

While the contract may not be altered by parol evidence, it may be explained, clerical errors detected and corrected, and its language applied by a consideration of the circumstances of the parties, the subject matter, and any usages and customs which they had in contemplation at the time of making the agreement. (29 Am. & Eng. Ency. of Law, 2d ed., 421, 424; 12 Ency. of Ev. 15, 16.)

Under practically similar statutes it has been held that the consideration need not be shown in the memorandum. (Stern v. Deutsch, 9 Kan. App. 218, 59 P. 687.)

Where ambiguity arises as to the consideration to be paid for the subject matter to be conveyed, parol evidence is receivable. (2 Am. & Eng. Ency. of Law, 2d ed., 301.)

Courts of law and equity may correct, merely as a matter of construction, obvious mistakes of a verbal or clerical character, so as to bring all parts of the instrument into harmony with the manifest intent of the parties as gathered from the instrument itself. (17 Am. & Eng. Ency. of Law, 2d ed., 19; Newell v. Radford, L. R. 3 C. P. 52; Walls v. Sawyer, 55 N.H. 38; Penniman v. Hartshorn, 13 Mass. 87; O' Neil v. Crain, 67 Mo. 250; Lerned v. Wannemacher, 91 Mass. 412; Darnell v. Lafferty, 113 Mo.App. 282, 88 S.W. 784; Rhodes v. Castner, 94 Mass. 130; Gowen v. Klous, 101 Mass. 449; Morrison v. Browne, 191 Mass. 65, 77 N.E. 527; California Canneries Co. v. Scatena, 117 Cal. 447, 49 P. 462; Butler v. Thompson, 92 U.S. 412, 23 L.Ed. 684; Bibb v. Allen, 149 U.S. 481, 13 S.Ct. 950, 37 L.Ed. 825; Reid v. Alaska Packing Assn., 43 Ore. 429, 73 P. 337; Coddington v. Goddard, 16 Gray (Mass.), 436; Pindyck v. Marwell, 129 N.Y.S. 454.)

The fact that the written memorandum of a promise to answer for the debt of another is ambiguous does not render it void, under the statute of frauds; but the ambiguity may be explained by parol evidence. (Oppenheim v. Waterbury, 86 Hun, 122, 33 N.Y.S. 183.)

In construing the language of commercial instruments it must be borne in mind that such instruments are often hurriedly drawn by those who are unacquainted with the exact requirements and phraseology of statutory enactments. Judicial construction of such instruments is to be made with due regard to this fact, rather than with a view of applying narrow and technical rules. Any other rule would defeat the true intent of the parties. (Blum v. Blum, 90 N.Y. Supp.

The statute is intended as a shield. No particular forms are required, and it looks at the substance of the contract. It requires a note or memorandum of the contract, not a detail of all its particulars. (Atwood v. Cobb, 16 Pick. (Mass.) 227.)

The defendants were the party to be charged by the memorandum, and it is signed by them. They should have taken care to procure one from the other party. (Penniman v. Hartshorn, 13 Mass. 87; Mitchell v. LaFollett, 38 Ore. 178, 63 P. 54; Johnson v. Dodgson, 2 Mees. & W. 653; Haubelt Bros. v. Rea & Page Mill Co., 77 Mo.App. 672; Trevor v. Wood, 36 N.Y. 307, 93 Am. Dec. 511; reversing 41 Barb. 255; Stubblefield v. Imbler, 33 Ore. 446, 54 P. 198.)

Perry W. Mitchell, S. O. Tannahill and Geo. W. Tannahill, for Respondents.

It is admitted that no part of the goods or chattels has been received or delivered; that no part of the purchase price has been paid.

A reference to the memorandum will show that none of the provisions of sec. 6009 has been complied with. (Coffin v. Bradbury, 3 Idaho 770, 95 Am. St. 37, 35 P. 715; Kurdy v. Rogers, 10 Idaho 416, 79 P. 195.)

Oral testimony cannot be introduced to add to or vary the terms of a written memorandum or agreement. (Williams v. Morris, 95 U.S. 444, 24 L.Ed. 362.)

Unless the essential terms of the contract can be determined from the contract itself, it is within the statute of frauds, and, if thus defective, the defect cannot be supplied by parol proof, for admitting parol testimony to supply the essential parts of the contract would be to restore the mischief which the enactment of the statute of frauds was framed to prevent. (Abba v. Smyth, 21 Utah 109, 59 P. 756; Peoria Grape Sugar Co. v. Babcock Co., 67 F. 892; Van Boskerck v. Torbett, 184 F. 419, 107 C. C. A. 383; Halsell v. Renfrow, 202 U.S. 285, 26 S.Ct. 610, 50 L.Ed. 1032, 6 Ann. Cas. 189; Ellis v. Denver L. & G. R. Co., 7 Colo. App. 350, 43 P. 457; Williams-Hayward Shoe Co. v. Brooks, 9 Wyo. 424, 64 P. 342.)

Proof of custom is inadmissible to add to or vary the terms or conditions of a written instrument. (Salomon v. McRae, 9 Colo. App. 23, 47 P. 409.)

The instrument purporting to be a contract was void for lack of mutuality. (Arnold v. Scharbauer, 116 F. 492; Harvester King Co. v. Mitchell, Lewis & Staver Co., 89 F. 173; Dorsey v. Packard, 12 How. (U.S.) 126, 13 L.Ed. 921; Pacific Mill Co. v. Inman, Poulsen & Co., 50 Ore. 22, 90 P. 1100; Tyler Ice Co. v. Coupland, 44 Tex. Civ. App. 383, 99 S.W. 133; Benjamin v. Bruce, 87 Md. 240, 39 A. 810.)

The memorandum contains no agreement for Houser to buy the barley. (Hirschhorn v. Nelden-Judson Drug Co., 26 Utah 110, 72 P. 386; Rafolovitz v. American Tobacco Co., 73 Hun, 87, 25 N.Y.S. 1036; Hazelhurst Lumber Co. v. Merc. etc. Co., 166 F. 191; Co-operative Telephone Co. v. Katus, 140 Mich. 367, 112 Am. St. 414, 103 N.W. 814; Brewer v. Horst-Lachmund Co., 127 Cal. 643, 60 P. 418, 50 L. R. A. 240, and notes.)

Parol evidence is not admissible to connect separate writings so as to piece out or make, by oral identification, a memorandum sufficient to satisfy the statute of frauds. (Kling v Bordner, 65 Ohio St. 86, 61 N.E. 148; Ward v. Hasbrouck, 169 N.Y. 407, 62 N.E. 434; Mentz v. Newwitter, 122 N.Y. 491, 19 Am. St. 514, 25 N.E. 1044, 11 L. R. A. 97, and notes; Johnson & Miller v. Buck, 35 N.J.L. 338,...