Leesley Bros. v. A. Rebori Fruit Co.

• Decision Date: 05 February 1912
• Citation: 144 S.W. 138,162 Mo. App. 195
• Parties: LEESLEY BROS. v. A. REBORI FRUIT CO.
• Court: Missouri Court of Appeals

144 S.W. 138

162 Mo. A. 195

LEESLEY BROS. v. A. REBORI FRUIT CO.

Springfield Court of Appeals. Missouri.

February 5, 1912.

Rehearing Denied March 4, 1912.

1. APPEAL AND ERROR (§78)—JUDGMENTS APPEALABLE—INVOLUNTARY NONSUIT.

A plaintiff who, after the sustaining of defendant's demurrer to the evidence, over objections and exceptions, takes an involuntary nonsuit, with leave to move to set the same aside, may appeal from the final judgment.

2. FRAUDS, STATUTE OF (§ 153)—DEFENSES —AVAILABILITY.

The defense of the statute of frauds is available to defendant under a general denial; and where he denies the making of the contract sued on he may object that it is within the statute of frauds.

3. FRAUDS, STATUTE OF (§ 118)—CONTRACTS —MEMORANDA.

Contracts may be taken out of the statute of frauds by telegram, or by mail and telegram, provided the minds of the parties meet, and the terms of the contract are sufficiently definite and certain.

4. FRAUDS, STATUTE OF (§§ 106, 158)—CONTRACTS—MEMORANDA—REQUISITES.

A writing satisfying the statute of frauds must contain the essential elements of the contract, and must be complete within itself; and parol evidence is inadmissible to add to the essential elements.

5. FRAUDS, STATUTE OF (§ 106)—CONTRACTS —MEMORANDA—REQUISITES.

The court may interpret memoranda evidencing a contract in the light of the circumstances; and where it is put into possession of the knowledge which the parties to the transaction had at the time, and it can see from the memoranda who the parties to the contract

are, the subject of the contract and its terms, the memoranda is sufficient.

6. FRAUDS, STATUTE OF (§ 118)—CONTRACTS —MEMORANDA—REQUISITES.

The statute of frauds does not require that the agreement of the parties shall be contained in one writing; but where there are several writings, referring to and forming a part of the same subject-matter, all may be construed together in ascertaining the terms of the contract, though they do not specifically refer to each other, but their connection appearing from inspection and comparison.

7. FRAUDS, STATUTE OF (§ 118)—CONTRACTS —MEMORANDA—REQUISITES.

The deficiency of a memorandum of a contract of sale, arising from its failure to state the price of the goods sold, may be cured by other writings referring to the same subject which furnish the price.

8. FRAUDS, STATUTE OF (§ 113)—CONTRACTS OF SALE—MEMORANDA—REQUISITES.

A memorandum of a contract of sale, to satisfy the statute of frauds, need not show the time and place of delivery.

9. FRAUDS, STATUTE OF (§§ 111, 158)—CONTRACTS—MEMORANDA—SUFFICIENCY.

The subject-matter of a contract, to satisfy the statute of frauds, must be so described in the memorandum as to be capable of certain identification; but where the description points to specific property parol evidence to identify the property is admissible.

10. FRAUDS, STATUTE OF (§ 109)—CONTRACTS OF SALE—MEMORANDA—REQUISITES.

A written contract of sale of onions specified the quantity and fixed the price and time for delivery on conditions specified. During the month fixed for delivery, the buyer, by telegram, made inquiries as to the quantity of onions that the seller could ship in a car. The seller replied by letter, specifying the quantity. The seller subsequently shipped the onions and sent to the buyer a duplicate bill of lading. The buyer, on the arrival of the goods, telegraphed that he would take them on a 10 per cent. deduction, and the seller, by telegram, through its agent, addressed to the bank, holding the draft against the buyer for collection, agreed to accept it. Held, that the contract of sale, considered in connection with the telegrams and letters, was sufficient to satisfy the statute of frauds.

11. SALES (§ 23)—OFFER—ACCEPTANCE.

Where a seller sent a bill of lading and draft for the price attached to a bank, and the buyer, on the arrival of the goods at destination, offered, by telegram, to the seller to take them on a 10 per cent. reduction, the act of the seller in notifying the bank to accept the offer was a sufficient acceptance, and the buyer was bound by his offer.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by Leesley Bros. against the A. Rebori Fruit Company. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

A. W. Lyon, for appellants. V. O. Coltrane, for respondent.

NIXON, P. J.

This was an action for damages for the alleged breach of a contract in the sale of onion sets. The plaintiffs constitute a partnership firm engaged in growing and shipping onion sets from their place of business near the city of Chicago, Ill. Defendant is a corporation engaged in the wholesale commission business in the city of Springfield, Mo. In their petition, plaintiffs state that on or about March 1, 1910, they entered into a written contract with the defendant, whereby they sold to the defendant onion sets to the amount of 800 bushels, being a car load lot, of various kinds, afterwards changed to 708 bushels at the same price. The petition was in two counts; but at the conclusion of the evidence the plaintiffs elected to stand upon the second count. It is admitted that the onion sets were shipped from Chicago to Springfield, and there tendered to the defendant; but the defendant failed and refused to accept them and pay for them. After they arrived in Springfield, defendant proposed to plaintiffs, by telegram, that it would accept the onion sets if the plaintiffs would authorize the bank to reduce the draft (which accompanied the bill of lading) 10 per cent. The plaintiffs thereupon notified the Merchants' National Bank of Springfield, to which the bill of lading with draft attached had been sent, to reduce the draft 10 per cent., and the bank immediately undertook to notify the defendant of such reduction; but the defendant still refused to accept or pay for the onion sets, and plaintiffs claim they had to resell them in the open market at a loss, after taking off the 10 per cent. discount, and this action is for the amount of such loss. The defendant's answer was a general denial. At the conclusion of the plaintiffs' evidence, the defendant offered a demurrer to the evidence, which was sustained by the court. Plaintiffs took a nonsuit, and, failing to plead further, final judgment was entered, from which they have appealed.

The respondent contends that the appellants took a voluntary nonsuit, and hence were not entitled, under the law, to an appeal. The record shows the following recitals as to the nonsuit: "Thereupon the defendant requested the court to give to the jury an instruction in the nature of a demurrer to the evidence, which instruction is in words and figures as follows, to wit: `The court instructs the jury that, under the pleadings and evidence in this case, the plaintiffs are not entitled to recover on the second count.' To the giving of which instruction, the plaintiffs then and there, at the time, objected. Thereupon, and notwithstanding plaintiffs' objection to the giving of said instruction, the same was given by the court to the jury, to which action of the court the plaintiffs then and there, at the time, excepted. And thereupon, and by reason of the giving of said instruction and the court's adverse ruling to plaintiffs upon the same, the plaintiffs were forced to take and did take an involuntary nonsuit, with leave to move to set the same aside, which said nonsuit and leave was granted by the court." This record shows beyond question, as clearly as language could express it, that after defendant's demurrer to plaintiffs' evidence had been sustained by the court, over the plaintiffs' objections and exceptions, the plaintiffs, by reason of the giving of said instruction, and by reason of the court's adverse ruling against the plaintiffs upon the demurrer to the evidence, were forced to take and did take an involuntary nonsuit, with leave to move to set the same aside. This case is to be distinguished clearly from those cases where the court has merely declared its intention to give an instruction in the nature of a demurrer to the evidence, and before it is actually given the opposite party takes his nonsuit. This record shows that after the demurrer had been sustained the plaintiffs took an involuntary nonsuit. We think the record shows that the plaintiffs took the proper steps to preserve their right of appeal.

This is an action for breach of a contract of sale of goods, wares, and merchandise by the plaintiffs to the defendant, in which the purchase price was over $30. It is one of that class of contracts governed by the last clause of section 2784, R. S. 1909, known as the statute of frauds, which section requires that "some note or memorandum in writing be made of the bargain, and signed by the parties to be charged with such contract."

The alleged contract is based upon two telegrams, the first of which is as follows: "Springfield, Mo., Mar. 2, 1910. Leesley Bros., Chicago, Ill. If you will authorize bank to reduce draft ten per cent. will accept onions. Show that much soft rot. A. Rebori Fruit Co." Immediately on receipt of this telegram, plaintiffs went to the Ft. Dearborn National Bank of Chicago, and caused it to send the following telegram to the Merchants' National Bank of Springfield, Mo.: "Chicago, Ill., Mar. 3, 1910. Merchants' National Bank, Springfield, Mo. Reduce our draft No. 42345, Rebori Fruit Co., ten per cent. on face of draft, our February 26th. Fort Dearborn National Bank."

It is apparent that this is a contract, by offer of the defendant and acceptance by the plaintiffs, in which the defendant promises to take the onions in consideration of the plaintiffs doing a certain act, namely, authorize the bank to reduce the draft 10 per cent., which authorization plaintiffs immediately gave the bank.

The defense of the statute of frauds is available to the defendant under a general...