Jacobson v. Perman
| Decision Date | 25 May 1921 |
| Citation | 238 Mass. 445,131 N.E. 174 |
| Parties | JACOBSON v. PERMAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Report from Superior Court, Suffolk County; Lloyd E. White, Judge.$ $SY Action by Gabriel Jacobson against Charles Perman for breach of an alleged contract for the sale of cloth. The court directed a verdict for defendant, and reported the case, with the provision that, if such ruling was correct, judgment was to be rendered on the verdict, and that, if erroneous, there was to be a new trial. New trial granted.
The answer denied generally the allegations of the declaration and set up the statute of frauds. After introducing evidence, plaintiff made an offer of proof quoted in the opinion, and on the evidence introduced and that offered defendant made the motion for a directed verdict. The original of the order sued on was as follows:
Sept. 12, 1917.
Caesor Mills, New York City, N. Y. -Gentlemen: Kindly enter my order for government bombazine to count 64x60, water repellent finish, 100,000 yds. at 13 1/4c per yard and 150,000 yds. at 13c per yard, deliveries as follows:
25,000 yds. in November.
75,000 yds. in December.
100,000 yds. in January.
50,000 yds. in February.
Should there be an advance in the gray goods market, between the 11th of September and the 12th of September, the price of 13c should be changed accordingly up to 13 1/4c. Terms to be 2-10-60.
[Signed] G. Jacobson.
The carbon copy bore in typewriting the same words, and also bore in ink, at the bottom thereof, the signature ‘B. Miller’ after the word ‘seller.’
Samuel Sigilman, of Boston, for plaintiff.
Dunbar, Nutter & McClennen, of Boston (Edward F. McClennen and Jacob J. Kaplan, both of Boston, of counsel), for defendant.
This is an action of contract to recover damages for failure of the defendant (who carried on business under the name of Caesor Mills) to deliver 250,000 yards of cloth. The plaintiff contended that in making the alleged contract one Miller acted as the authorized agent of the defendant. At the close of the evidence the plaintiff made the following offer of proof:
On September 12, 1917, Miller came to his office and said to him: “We will sell you government bombazine to count 64x60, water repellent finished, delivering 25,000 yards in November, 75,000 yards in December, 100,000 yards in January, and 50,000 yards in February, at the price of 31 1/4c per yard for the first 100,000 yards and 13c per yard for the other 150,000 yards, provided the contract is completed right away to-day because the market is fluctuating very rapidly. * * * I shall stipulate that if there should be an advance in the gray goods market between the 11th and 12th of September, the price of the 100,000 yards is to be 13 1/4c instead of 13c, and terms are to be 2-10-60.' That the plaintiff then said to Miller: ‘I will accept your offer and buy these goods on those terms.’ That thereupon Miller dictated to the stenographer the paper of which the paper marked A for identification is a carbon copy. * * * That then [the] plaintiff signed both said paper marked A for identification and also said paper of which the same is a carbon copy and Miller signed said carbon copy. That Miller took away with him said original and left with the plaintiff said carbon copy.'
The carbon copy is signed ‘Seller B. Miller.’ The plaintiff offered the paper marked A and the original; both were excluded subject to the plaintiff's exception.
It is the contention of the defendant (1) that the evidence offered was not sufficient to show the authority of the agent Miller to make the alleged contract, and (2) that the memorandum offered was not sufficient to satisfy the statute of frauds.
As to the authority of Miller to make the contract of sale, the plaintiff offered evidence to show:
That about the middle of August, 1917, in the defendant's office in New York he bought 15,000 yards of government bombazine of the defendant. That he then told him that he ...
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...action in response to the buyers' written submission and the memorandum required to prove what the contract is. Jacobson v. Perman, 238 Mass. 445, 448-449, 131 N.E. 174 (1921). A.B.C. Auto Parts, Inc. v. Moran, 359 Mass. 327, 330, 268 N.E.2d 844 (1971). See Michelson v. Sherman, 310 Mass. 7......
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