Syllabus
by the Court.
While
telegrams or cablegrams may constitute a sufficient
memorandum of a contract within the statute of frauds, yet
in order to do so, the invariable rule is that they must
taken as a whole, contain all the material terms of the
contract, leaving nothing to be proved by parol evidence.
A
contract of sale alleged to have been made by a seller's
conditional acceptance by cablegrams and telegrams of a
buyer's oral offer to purchase 10,000,000 gallons of a
particular kind of gasoline ("from 715 to 733 specific
gravity; final boiling point not to exceed 340 degrees
Fahrenheit; color white and odor sweet") to be delivered
in a particular manner and at specified times (in
consignments of 2,000,000 gallons each, and from 60 to 90
days apart, beginning about March 1, 1915), and on certain
terms of credit (15 cents per gallon, and certain
transportation charges to be paid as each consignment is
taken from storage and sold, in London, Eng., but within 60
days after arrival, and one-half of the net profits on resale
to be paid every 30 days), and which cablegrams of acceptance
do not describe the particular quality of gasoline, nor
contain the terms of credit agreed upon, nor the provisions
as to the time and manner of delivery, is invalid under
subdivision 4 of section 5034, Comp. Stat. 1921, commonly
called the statute of frauds.
While a
valid binding contract may be entered into through a series
of cablegrams or telegrams, yet, in order to do so, such
cablegrams and telegrams must be complete within themselves
and so connected with each other that they may be said to
fairly constitute one paper and to contain all the material
terms of the agreement between the parties, leaving nothing
to be proved by parol evidence.
A
general demurrer lies to a petition which shows that the
contract sued upon, or for a breach of which damages are
claimed, is within subdivision 4 of section 5034, Comp. Stat.
1921, commonly called the statute of frauds.
While
oral evidence of a custom is admissible to explain the
meaning of technical terms, abbreviations, or symbols
contained in a memorandum; it is not admissible to explain
the meaning of a phrase, abbreviation, etc., not found in the
memorandum, nor is it admissible to supply a material term or
provision of a contract, which has been omitted from the
memorandum.
An
agreement for the sale of goods at a price not less than $50
is not valid within the statute of frauds (section 5034,
Comp. Stat. 1921), unless all the terms of the contract,
including the description of the goods sold, the terms of
credit agreed upon, and the provisions as to the time and
manner of delivery, are evidenced by writing subscribed by
the party to be charged or his agent.
Commissioners'
Opinion, Division No. 3.
Appeal
from District Court, Tulsa County; Albert C. Hunt, Judge.
Action
by the Mason Motors Spirit Distributing Company, Limited,
against J. S. Cosden and another. From judgment for
defendants, plaintiff appeals. Affirmed.
JONES
C.
This
action was instituted in the district court of Tulsa county
on the 14th day of October, 1920, by appellant, plaintiff in
the trial court, against the appellee, defendant in the trial
court, to recover damages for an alleged breach of a contract
of sale of gasoline by defendant to plaintiff, and this
appeal is taken from a judgment of the trial court sustaining
defendant's general demurrer to plaintiff's amended
petition, which is as follows:
"Comes now the plaintiff, and for its cause of action
against said defendants says and avers:
I. That the plaintiff is now, and has been at all times
hereinafter mentioned a corporation organized and existing
under and by virtue of the laws of England, having its
principal office and place of business at 155 Upper Thames
street, London, and was engaged in the business of buying and
selling gasoline called petrol.
II. That at all times hereinafter mentioned one Japh Mason
was the president of the plaintiff corporation and general
manager and executive officer of said plaintiff, with full
power
and authority to make on behalf of plaintiff any contract for
the purchase or sale of said commodity.
III. That the defendant Cosden & Co. is and has been at all
times hereinafter mentioned a corporation organized and
existing under and by virtue of the laws of the state of
Oklahoma, having its principal office and place of business
at the city of Tulsa in said state, and engaged in the
business of refining petroleum oils, and marketing the
refined products thereof, including gasoline or petrol, and
that the defendant J. S. Cosden has been at all times
hereinafter mentioned the president, chief executive officer,
and general manager of the said defendant corporation, with
full power and authority to make contracts in its behalf for
the sale of its manufactured products, including gasoline or
petrol.
IV. And plaintiff avers that at all times hereinafter
mentioned one A. F. Gressler was the duly authorized agent of
the plaintiff to negotiate for the plaintiff the contract
hereinafter set out and pleaded.
V. And plaintiff avers that heretofore to wit, at the city of
New York, in the state of New York, about the 5th day of
February, 1915, until the 19th day of February, 1915, the
plaintiff acting by its said agent, A. F. Gressler, and its
said president, Japh Mason, and the defendants acting by the
said J. S. Cosden, made and entered into a certain contract
by the terms of which the plaintiff agreed to buy and the
defendants agreed to sell and deliver to the plaintiff at
London, England, 10,000,000 gallons of gasoline, or petrol,
to be delivered by the defendants to the plaintiff in
consignments of 2,000,000 gallons each, the first of said
deliveries to be shipped about the 1st day of March, 1915,
and delivered in London about the 20th day of March, 1915,
and the second consignment to be delivered in London from 60
to 90 days after the second aforesaid; the fourth consignment
to be delivered in London from 60 to 90 days after the third
aforesaid, and the fifth consignment to be delivered in
London from 60 to 90 days after the fourth aforesaid, said
gasoline to be commercial gasoline. And plaintiff avers that
by the uses and customs of the gasoline trade at the city of
New York, and the city of London, aforesaid, commercial
gasoline for the purpose of commercial sale in London was at
the time, and was known to be at the time by all of the
contracting parties in said transaction to be from .715
specific gravity to .733 specific gravity; the final boiling
point not to exceed 340 degrees Fahrenheit, white color, and
odor sweet. And said deliveries were to be made in the
storage tanks of the London Thames Haven Oil Wharves,
Limited, London, England, for which said gasoline the
plaintiff agreed to pay 15 cents per gallon, and all
transportation charges above 30 shillings per ton paid out by
the defendant; said payments to be made by the plaintiff to
the defendants as said gasoline should be taken from said
storage and sold, such payments including the said 15 cents
per gallon with said transportation charges above 30
shillings per ton added; but it was agreed and contracted
that in no event should the time of payment for each of said
shipments extend beyond 60 days after the date of the
delivery of said shipments as aforesaid.
VI. And plaintiff avers that it was agreed and contracted
that plaintiff should procure a guaranty from the London
Guarantee & Accident Company, Limited, to be made to the
defendants or their nominee in the amount of 50,000 pounds
sterling, guaranteeing the said payments as aforesaid.
VII. And it was further contracted and agreed that the
plaintiff would provide adequate and proper storage to
accommodate said shipments as they arrived.
VIII. And plaintiff avers that it was further contracted and
agreed between the plaintiff and the defendants that as
further compensation to the defendants the plaintiff would
pay one-half of the net profit to be realized by the sale of
said merchandise in the English markets; settlement to be
made every 30 days after the delivery of the first shipment.
IX. And plaintiff avers that a memorandum of said contract
was made and entered into in writing between the said
parties, as follows:
On or about the 7th day of February, 1915, at the city of New
York the plaintiff by its agent, A. F. Gressler, thereunto
duly authorized, offered to purchase from the defendants upon
the terms hereintofore stated, and thereupon the defendant,
J. S. Cosden, for himself and his codefendant herein,
transmitted by cable in writing to Japh Mason, the president
of the aforesaid plaintiff corporation in words and figures,
to wit:
'February 7, 1915.
Japh Mason, 155 Upper Thames Street, London. Gressler has
offered us contract to furnish you ten million gallons
gasoline delivered London during year at fifteen cents gallon
based on thirty shilling freight; if we should be compelled
to pay up to forty-six shillings per ton you are to pay
difference; will accept contract if you furnish satisfactory
bond and reference; who has been furnishing you? Answer to
Biltmore Hotel. J. S. Cosden.'
To which message on the 8th day of February, 1915, the
plaintiff by its said president replied by cable in writing
as follows:
'J. S. Cosden, Biltmore Hotel, New York. Thanks. Am
arranging 50,000 pounds
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