Howell v. Elk Hill Butter Co.
| Decision Date | 31 December 1923 |
| Docket Number | 1426. |
| Citation | 294 F. 539 |
| Parties | HOWELL et al. v. ELK HILL BUTTER CO. |
| Court | U.S. District Court — Middle District of Pennsylvania |
Knapp O'Malley, Hill & Harris, of Scranton, Pa., for plaintiff.
Myer Kabatchnick, of Scranton, Pa., for defendant.
Plaintiffs sued to recover the difference between the market and the contract price of a certain quantity of sugar, which they allege they sold to the defendant, and which the defendant refused to accept. The defendant has filed an affidavit of defense questioning the sufficiency of the plaintiffs' statement on the ground that the alleged contract which the defendant is said to have broken or violated is not a legal contract.
The main and only question presented at this time, it appears, is whether the disputed contract is enforceable, in view of section 4 of the Sales Act (Act 1915; P.L. 543; Pa. St. 1920 Sec. 19652), which provides that:
'A contract to sell or a sale of any goods or choses in action of the value of five hundred dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or 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.'
In the present case there is no averment of any payment or part performance by the defendant, nor is it claimed that the defendant actually received the merchandise, and hence our inquiry is limited to determining whether it undisputedly appears there was an adequate note or memorandum in writing of the contract or sale signed by the defendant or his agent.
In the memorandum, a copy of which is attached to the plaintiffs' statement, it will be noted that the term 'basis 22¢' appears above the words 'freight bbls. & cases .252, bags .239,' though in the body of the same it stipulates '115 barrels' 'fine granulated price 22.239.' In the plaintiff's statement an explanation of these terms is proposed, but in Franklin Sugar Refining Co. v. Howell et al., 274 Pa. 200, 118 A. 109, where the memorandum relied on by the plaintiff was of similar import, the court held that, where the memorandum does not specify any price to be paid by defendant, but contains the words 'basis 22.50' and 'price 22.50,' these terms were meaningless if taken by themselves, and that in the absence of any reference to any specific thing extraneous transmitting these terms into a certain price per pound, as it was admittedly intended to be indicated, the contract was wanting an important term, that of price of the merchandise bartered for, which could not be ascertained from the paper alone, when its words are given their usual significance.
As much may also be said for the terms of payment. In the memorandum under consideration the words '30 days' are...
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Howell v. Witman-Schwartz Corporation
...in writing signed by the party to be charged or his agent. In so doing he relied on his opinion in the case of Howell et al. v. Elk Hill Butter Co. (D. C.) 294 F. 539. This case was based on Franklin Sugar Refining Co. v. Howell et al., 274 Pa. 190, 118 A. 109 and Franklin Sugar Refining Co......
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TRACTOR SUPPLY & OVERSEAS EXCH. CO. v. Ellard Contr. Co.
...in the latter amount. The price to be paid is an essential element of the note or memorandum required by the statute. Howell v. Elk Hill Butter Co., D.C.Pa., 294 F. 539; 37 C.J.S., Frauds, Statute of, § 195. In Helms Construction & Trading Corp. v. Steiner, Sup., 80 N.Y.S.2d 865, where the ......