Leesley Brothers v. A. Rebori Fruit Company

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

144 S.W. 138

162 Mo.App. 195

LEESLEY BROTHERS, Appellants, v. A. REBORI FRUIT COMPANY, Respondents

Court of Appeals of Missouri, Springfield

February 5, 1912

Motion for Rehearing Overruled, March 4, 1912.

Appeal from Greene Circuit Court.--Hon. Guy D. Kirby, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

A. W Lyon for appellant.

(1) The agreement is sufficient within the statute of frauds if it appears by different memoranda, or even if in a letter written by the party sought to be charged and directed to a third party. Cunningham v. Williams, 43 Mo.App. 629; Black & Snyder v. Crowther, 74 Mo.App. 480; Grocer Co. v. Capen, 23 Mo.App. 301; Peycke Bros. v. Aherns, 98 Mo.App. 456. (2) The court will reach out and consider any and all writings pertaining to the subject, such as a letter written to a third party for the purpose of repudiating the contract, a pleading in some other cause, the minutes of a town council or church society. Cash v. Clark, 61 Mo.App. 636; Harrison v Craven, 188 Mo. 609; Milling Co. v. Burher, 122 Mo.App. 19. (3) Acceptance may be oral. Black & Snyder v Crowther, 74 Mo.App. 480. (4) Notification by phone is sufficient where that method is the custom, which method was the custom as shown by Keet's evidence. Barnett & O'Neal v. Grain Co., 153 Mo.App. 463. (5) The court will take into consideration the facts and circumstances surrounding the transaction and within the knowledge of the parties before and at the time of the contract, to be supplied by parol, which would lead to a certain identification thereof. Darnell v. Lafferty, 113 Mo.App. 305; Printing Co. v. Belcher, 127 Mo.App. 133; Wilcox v. Sonka, 137 Mo.App. 54.

V. O. Coltrane for respondent.

(1) Plaintiff's rights are to be measured by the written contract, as modified by subsequent telegrams or by the correspondence subsequent to the written contract alone. Rucker v. Harrington, 52 Mo.App. 487; Wharton v. Foundry Co., 1 Mo.App. 582. (2) To make the proposal in Exhibit F a contract it should have been accepted, and notice of the acceptance given to defendant. Such notice was not given. Robinson v. Railroad, 75 Mo. 494; Neu v. Ins. Co., 131 Am. St. Rep. 245; Horton v. Ins. Co., 151 Mo. 604; Dalton v. Terminal Co., 66 Mo.App. 271; Dalton v. Railroad, 113 Mo.App. 78; Mechem on Agency, secs. 725, 729; Anson on Contracts, p. 30; Patterson v. Campden, 25 Mo. 13; Morton v. Supreme Council, 100 Mo.App. 87; Raining v. Railway, 157 Mo. 477. (3) The agreement which plaintiffs undertake to show is within the Statute of Frauds and there is no sufficient note or memorandum in writing of the bargain signed by the defendant or its lawfully authorized agent. R. S. 1909, sec. 2784; Burdick on Sales (2 Ed.), sec. 66, p. 36; 1 Mechem on Sales, p. 355, sec. 426; p. 363, sec. 437; Scarritt v. Church, 7 Mo.App. 178; Schroeder v. Taafe, 11 Mo.App. 267; Boeckler v. McGowan, 12 Mo.App. 507; Riegart v. Coal & Coke Co., 217 Mo. 142; Mentz v. Newwitter, 19 Am. St. Rep. 514; Johnson v. Buck, 10 Am. Rep. 243; O'Donnell v. Lieman, 43 Me. 158; Benjamin on Sales (2 Ed.), sec. 211, p. 181; Whaley v. Hinchman, 22 Mo.App. 483; North v. Medil, 54 Am. Rep. 879; Johnson v. Fecht, 185 Mo. 335; Biest v. Shoe Co., 97 Mo.App. 137; Fox v. Courtney, 111 Mo. 147; 29 Am. & Eng. Ency. Law (2 Ed.), 866; Smith v. Shell, 82 Mo. 215; Christensen v. Wooley, 41 Mo.App. 56; Brookfield v. College, 139 Mo.App. 368; Rucker v. Harrington, 52 Mo.App. 494; Weil v. Willard, 55 Mo.App. 376; Mason v. Small, 130 Mo.App. 249; Kelly v. Thuey, 143 Mo. 436; Milling Co. v. Burgher, 122 Mo.App. 14; Boyd v. Paul, 125 Mo. 9; Hillman v. Allen, 145 Mo. 638.

OPINION

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 Chicage, Illinois. Defendant is a corporation engaged in the wholesale commission business in the city of Springfield, Missouri. 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 carload 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) ten 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 ten 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 ten 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 thirty dollars. It is one of that class of contracts governed by the last clause of Sec. 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 Fort Dearborn National Bank of Chicago and caused it to send the following telegram to the Merchants' National Bank of Springfield, Missouri: "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 ten per cent, which authorization plaintiffs immediately gave the bank.

The defense of the Statute of Frauds is available to the defendant under a general denial; and where the defendant denies as in this case the making of the contract sued on, he may object that it is within the Statute of Frauds, though he does not plead the statute. [Hook v. Turner, 22 Mo. 333; Allen v. Richard, 83 Mo. 55; Boyd v. Paul, 125 Mo. 9, 28 S.W. 171; Hillman v. Allen, 145 Mo. 638, 47 S.W. 509.]

The general rule is that contracts may be made by telegram, or by mail and telegrams, and will constitute a valid contract under the Statute of Frauds where the minds of the parties met and the terms of the contract were sufficiently definite and certain.

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