Jones-Scott Co. v. Ellensburg Mill. Co.

• Decision Date: 05 August 1919
• Docket Number: 15359.
• Citation: 183 P. 113,108 Wash. 73
• Parties: JONES-SCOTT CO. v. ELLENSBURG MILLING CO.
• Court: Washington Supreme Court

183 P. 113

108 Wash. 73

JONES-SCOTT CO. v. ELLENSBURG MILLING CO.

No. 15359.

Supreme Court of Washington

August 5, 1919

Department 2.

Appeal from Superior Court, Kittitas County; John B. Davidson Judge.

Action by the Jones-Scott Company against the Ellensburg Milling Company. From judgment dismissing the action, plaintiff appeals. Reversed, and cause remanded.

Gose & Crowe, of Walla Walla, and Hovey & Hale, of Ellensburg, for appellant.

Austin Mires, of Ellensburg, and Carroll B. Graves, of Seattle, for respondent.

MOUNT J.

This action was brought to recover damages because defendant failed and refused to carry out a contract for the purchase of 10,000 bushels of wheat. When the original complaint was filed the defendant demanded, and was furnished with, a bill of particulars, setting out the contract relied upon. This bill of particulars consisted of four letters written between the parties, as follows:

'August 13, 1917.

'Ellensburg Milling Company, Ellensburg Washington--Gentlemen: Attention Mr. Helm. We confirm sale of 10,000 bushels of Blue stem on the 11th at $2.44 f. o. b cars Eureka Flat points, understanding that we are to carry you on this wheat at 7% and you to send us your check of $1,000 as margin and as per our phone conversation with you Saturday morning you were to have sent us the check that day.

'As the mail did not bring it in we suppose you overlooked this. Kindly mail us your check and oblige,

'Yours very truly,

Jones-Scott Co.

'[Signed] By H. B. Kershaw.'

'August 27, 1917.

'Ellensburg Milling Company, Ellensburg, Washington--Gentlemen: Attention Mr. Helm. When you were here little over a week ago you advised that you would remit us $1,000 on account in three days or by Wednesday of last week. We have put out something over $24,000 for your account and we think it is up to you to mail us this check.

'Yours very truly,

Jones-Scott Co.

'[Signed] By H. B. Kershaw.'

'August 28, 1917.

'Jones-Scott Co., Walla Walla, Wash.--Gentlemen: Regarding the $1,000, there was a note of $3,000 due which we cleaned up, and we cannot pay the $1,000 at this time. We have not made arrangements for handling the new crop yet, as our banker is out of town. We will pay this, however, at the earliest possible moment.

'Yours very truly,

Ellensburg Milling Co.

'[Signed] By Helm.'

'October 13, 1917.

'Jones-Scott Co., Walla Walla, Wash,--Gentlemen: If you will give me time I will take the wheat bought from you in August. You can ship one car about November 1st and draw sight draft. Will take balance as fast as I can.

'Ellensburg Milling Co.

[Signed] By Helm.'

After this bill of particulars was filed the trial court sustained a general demurrer to the complaint. The plaintiff thereupon filed an amended complaint, substantially the same as the original. The trial court sustained a general demurrer to this amended complaint; plaintiff elected to stand upon the allegations thereof, and the action was dismissed. Plaintiff has appealed.

It is argued by the respondent that the writings set forth above, relied upon by the appellant, do not constitute an enforceable agreement under the statute of frauds, for the reason that no memorandum was signed by the respondent containing the terms of the alleged contract, nor were the terms contained in the writings signed by the appellant ever accepted or agreed to in writing by the respondent. There can be no doubt of the rule that a written contract may be gathered from letters passing between the parties. Underwood v. Stack, 15 Wash. 497, 46 P. 1031.

As was said in Ryan v. United States, 136 U.S. 68, at page 83, 10 S.Ct. 913, at page 918 (34 L.Ed. 447):

'The principle is well established that a complete contract binding under the statute of frauds may be gathered from letters, writings and telegrams between the parties relating to the subject-matter of the contract, and so connected with each other that they may be fairly said to constitute one paper relating to the contract.'

Referring now to these letters: The first one, dated August 13, 1917, from Jones-Scott Company to Ellensburg Milling Company said:

'We confirm sale of 10,000 bushels of Blue stem on the 11th at $2.44 f. o. b. cars Eureka Flat points, understanding that we are to carry you on this wheat at 7% and you to send us your check of $1,000 as margin. * * *'

Two weeks later, on August the 27th, the Jones-Scott Company again wrote to the Ellensburg Milling Company, saying:

'When you were here little over a week ago you advised that you would remit us $1,000 on account in three days or by Wednesday of last week. We have put out something over $24,000 for your account and we think it is up to you to mail us this check.'

Upon the next day the Ellensburg Milling Company answered that letter, saying:

'Regarding the $1,000, there was a note of $3,000 due which we cleaned up, and we cannot pay the $1,000 at this time. We have not made arrangements for handling the new crop yet, as our banker is out of town. We will pay this, however, at the earliest possible moment.'

Up to this point there was apparently no acknowledgment of the alleged contract by the Ellensburg Milling Company, though there is a statement evidently referring to...