Lewis v. Aronow
| Decision Date | 05 November 1926 |
| Docket Number | 5982. |
| Parties | LEWIS v. ARONOW. |
| Court | Montana Supreme Court |
Appeal from District Court, Hill County; Carl E. Barton, Judge.
Action by F. F. Lewis, doing business as the Lewis Grain Company against Boris A. S. Aronow. Judgment for defendant, and plaintiff appeals. Reversed and remanded as to first cause of action, with directions, and affirmed as to second cause of action.
Arnot & Doyle, of Conrad, for appellant.
Louis P. Donovan and J. W. Kelly, both of Shelby, for respondent.
The amended complaint in this action (hereinafter called the complaint) alleges that the plaintiff is engaged in the business of buying and selling grain under the name of Lewis Grain Company, and that one C. A. Leighton, at the times involved, was his duly appointed agent; that on September 10 1924, at Gildford, Hill county; the plaintiff, by an oral agreement, purchased from the defendant, and the defendant sold to the plaintiff, 10,000 bushels of wheat then unthreshed and standing in stack on defendant's ranch near Gildford, which defendant then represented to plaintiff to be No. 1 dark northern spring, 14 protein wheat, and that defendant promised and agreed to deliver the same to the plaintiff on board cars on the railroad track at Gildford within a reasonable time, and that plaintiff promised and agreed to pay defendant therefor the sum of $1.16 per bushel "subject to terminal weights, grades, and charges"; that the wheat was so purchased by the plaintiff from the defendant for reshipment by plaintiff to a terminal market for resale, which fact was then well known to the defendant. It is further alleged that, in order to confirm such purchase and to make a note or memorandum of such oral contract, the plaintiff executed and subscribed a written confirmation thereof and delivered the same to the defendant in duplicate, and the defendant thereupon subscribed his name thereto under the words "accepted by" indorsed thereon, and thereupon redelivered one of the duplicates of said contract or confirmation to the plaintiff and retained the other. The contract or confirmation so referred to is as follows:
"Gildford, Montana, Sept. 10, 1924.
This confirms purchase to-day of ten thousand bushels of No. 1 D. N. S. 14 Protein wheat on track at Gildford, Montana, at one dollar and sixteen cents per bushel, subject to terminal weights, grades, and charges, to be delivered within a reasonable time.
Lewis Grain Company,
By C. A. Leighton.
Accepted by: Boris A. S. Aronow."
The complaint then sets forth in detail various customs and usages in vogue among persons engaged in the grain business at and about Gildford, to the effect that, where a sale of wheat is made under an oral contract of sale, the purchaser subscribes and delivers to the seller a written confirmation of the purchase, or the seller subscribes and delivers to the purchaser a written confirmation of the sale, and the party to such contract, other than the one confirming such sale or purchase, accepts such confirmation by subscribing his name upon it under the words "Accepted by" indorsed thereon; also that, where wheat is sold to be delivered on board cars on the railroad track at the point of origin, subject to terminal weights, grades, and charges, the purchaser has the option of shipping such wheat to any terminal market to which wheat is ordinarily and usually shipped from the point of origin, and, upon delivery of such wheat on board the railroad cars and the delivery of the bill of lading therefor to the purchaser, the purchaser advances to the seller from 80 to 90 per cent. of the purchase price thereof, as shown by the bill of lading, the exact amount between 80 and 90 per cent. to be advanced being at the option of the purchaser, and the balance of the purchase price is paid upon the receipt of returns from such wheat at the terminal market to which the same is shipped by the purchaser; and that the seller of the wheat is paid according to the grade and amount of such wheat arriving at the terminal market to which it is shipped, and as shown by the weights and amount thereof at such terminal market; that the grade of such wheat is determined, fixed, and ascertained by the inspection and testing thereof by the state grain inspector of the state where the terminal market to which the wheat is shipped is located, acting under and in pursuance of the provisions of the United States Grain Standards Act (U. S. Comp. St. §§ 8747 1/2-8747 1/2k). It is further alleged that these customs and usages were general and of general knowledge and notoriety among persons engaged in the grain business and in the business of buying, selling, and dealing in wheat and other grains; that they were well known to the parties to the contract in question, and that said parties, in making said contract, dealt with knowledge thereof and with reference to and in pursuance of them and all of them.
It is further alleged that the defendant failed and refused to deliver the wheat mentioned in said oral contract, or in said memorandum, within a reasonable time or at all; that, after the lapse of a reasonable time, the plaintiff demanded of the defendant that he deliver the wheat as provided by said contract, but that defendant refused to deliver the same or any part thereof, but, on the contrary, notified the plaintiff that he would not deliver said wheat; that plaintiff had performed his part of said contract, and had at all times been ready, able, and willing to receive and pay for said wheat in accordance with the agreement; and that, by reason of the defendant's failure to deliver said wheat, the plaintiff has been damaged in the sum of $3,750, no part of which has been paid.
For a second cause of action the complaint sets out that the plaintiff bought from the defendant, and the defendant sold to the plaintiff, 10,000 bushels of No. 1 dark northern spring, 14 protein, wheat, and then recites sundry oral agreements and stipulations made in connection therewith, following which it is alleged "that, in order to reduce said contract to writing and to make a note or memorandum thereof, the plaintiff and defendant executed and delivered to each other the following contract in writing, to wit," and then sets forth the same written instrument referred to in the first cause of action.
It is further alleged that the defendant failed and refused to deliver the wheat or any part of it within a reasonable time, and that on the 12th day of November, 1924, the plaintiff demanded delivery thereof from the defendant, which was refused, and that prior to the commencement of the action the defendant had informed the plaintiff that he would not comply with said contract or deliver any wheat to the plaintiff thereunder; that by reason thereof the plaintiff has been damaged in the sum of $3,750; and that plaintiff has always been ready, able, and willing to accept, receive, and pay for said wheat, as provided in said contract.
The defendant filed a general demurrer to each cause of action set forth in the amended complaint, upon the ground that the same did not state facts sufficient to constitute a cause of action, which demurrer was sustained. The plaintiff elected to stand upon his complaint, whereupon judgment was entered in favor of the defendant, and the plaintiff has appealed.
etc.
It is claimed by the defendant that the writing set out in the first cause of action is not a sufficient note or memorandum of the oral contract pleaded to take the same out of the operation of the above section, for the reasons: (1) That it does not properly or sufficiently describe the subject-matter of the oral agreement. (2) That it contains no agreement to sell. (3) That it fails to indicate who is the buyer and who the seller. (4) That it is void for uncertainty, in that it cannot be determined therefrom whether the parties were acting for themselves or as agents for others, nor can it be determined therefrom what price was to be paid for the wheat, the time of payment for the same, or at what terminal the "weights, grades, and charges" are to be established for the purpose of fixing the price to be paid, and that for these reasons the complaint does not state a cause of action against him.
The argument of defendant's counsel on his first objection is that the wheat mentioned in the oral contract is not sufficiently identified in the written memorandum pleaded in the first cause of action.
The oral contract pleaded says that the defendant sold to the plaintiff 10,000 bushels of wheat then unthreshed and standing in stack on defendant's ranch near Gildford, which wheat defendant then represented to the plaintiff to be No. 1, dark northern spring, 14 protein wheat; while the memorandum calls for "10,000 bushels of No. 1 D. N. S. 14 protein wheat on track at Gildford, Montana."
In connection with this objection, it will be convenient to ascertain and set down some general rules which have been established relative to the sufficiency and interpretation of the note or memorandum contemplated by section 7591, supra and also what oral evidence may be received and considered in connection therewith, as th...
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