Mason Motors Spirit Distributing Co. v. Cosden

• Decision Date: 23 September 1924
• Docket Number: 13705.
• Citation: Mason Motors Spirit Distributing Co. v. Cosden, 231 P. 890, 105 Okla. 244 (Okla. 1924)
• Parties: MASON MOTORS SPIRIT DISTRIBUTING CO., Limited, v. COSDEN et al.
• Court: Oklahoma Supreme Court

231 P. 890

105 Okla. 244

MASON MOTORS SPIRIT DISTRIBUTING CO., Limited, v. COSDEN et al.

No. 13705.

Supreme Court of Oklahoma

September 23, 1924

Withdrawn Corrected, Refiled, and Application to File Second Petition for Rehearing Denied Jan. 6, 1925.

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.

H. B. Martin and R. A. Reynolds, both of Tulsa, for plaintiff in error.

James C. Denton, Richard H. Wills, and J. H. Crocker, all of Tulsa, for defendants in error.

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 defendantCosden & 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 defendantJ. 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 defendantsthe 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 Yorkthe 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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