Memory v. Niepert

• Decision Date: 21 January 1890
• Citation: Memory v. Niepert, 131 Ill. 623, 23 N.E. 431 (Ill. 1890)
• Parties: MEMORY v. NIEPERT.
• Court: Illinois Supreme Court

131 Ill. 623

23 N.E. 431

MEMORY

v.NIEPERT.¹

Supreme Court of Illinois.

Jan. 21, 1890.

Error to appellate court, first district.

Bisbee, Ahrens & Decker, for plaintiff in error.

Smith & Pence, for defendant in error.

BAILEY, J.

This was a suit in assumpsitbrought in the superior court of Cook county, January 14, 1887, by Hermann Niepert, doing business at Bremen, Germany, under the name of Schmidt & Fuhrken, against Henry Memory, of Chicago, Ill., to recover damages for the non-delivery of the property described in the following instrument: ‘Bremen, September 20, 1879. ‘Messrs. Schmidt & Fuhrken, present: Mr. Henry Memory, in Chicago, has sold to you, through my care, 250 boxes of American bacon, long clear middles, at M. 25 for 110 1bs. Engl., cost and freight Bremen, against draft at 60 days' sight on your good selves, or against banker's reimbursement, in which case one-half per cent. allowance to be returned to you. Drafts to be accepted against delivery of documents, December or January, 1880. Shipment from the west by railroad to New York or Baltimore, hence by direct steamer to Bremen. Yours, respectfully, FRED. EGGENA.’ Said instrument was written in the German language, the foregoing being a translation. If said instrument is to be regarded as a consummated contract, as the plaintiff insists, it is, when construed in the light of the evidence, a contract of sale by the defendant to the plaintiff of 250 boxes of American bacon, at 25 marks for 110 English pounds, less freight and other charges to Bremen, a draft for the price to be drawn by the seller upon the purchaser at 60 days' sight; and in case the purchaser obtained a banker's guaranty he was to have returned to him one-half of 1 per cent. of the amount, the shipment to be made in December or January next after the date of the contract. The defendant pleaded non assumpsit, and also a plea averring that the causes of action alleged in the declaration did not, nor did either of them, accrue to the plaintiff within five years next prior to the commencement of the suit. To the latter plea the plaintiff replied that the contract sued upon was in writing, and to that replication the defendant rejoined that said contract was not in writing. A trial being had before the court without a jury, the issues were found for the plaintiff, and his damages were assessed at $4,919.96; and for that sum, and costs, the court, after denying the defendant's motion for a new trial, gave judgment in favor of the plaintiff. Said judgment was taken to the appellate court by writ of error, and was there affirmed; and by writ of error to that court the record is now brought here for review.

Said contract was negotiated, and said writing was executed, on behalf of the defendant, by Ferdinand Eggena, who claimed to act as the defendant's agent. His authority so to act was contested at the trial, the evidence on that point being conflicting. Whether the trial court reached a correct solution of that controversy or not is a matter which is not open for discussion here. It is a mere question of fact, as to which the judgment of the appellate court is conclusive, and therefore, for all the purposes of our decision, we must assume that said Eggena had in fact competent authority from the defendant to negotiate and conclude said contract. The evidence tends to show that at the date of said contract the plaintiff offered to purchase of Eggena, as the defendant's agent, 250 boxes of American bacon of the description, and upon the terms, set forth in said writing, and that Eggena accepted said offer on behalf of the defendant, and, as evidence of the contract thus formed, executed and delivered to the plaintiff said writing. No bacon was delivered by the defendant to the plaintiff in performance of said contract, but on the 4th day of December, 1879, and before performance was due, the defendant, having become embarrassed in his business affairs, wrote and sent a circular letter to his various customers, and among them to the plaintiff, explaining to them his circumstances, and the causes which brought them about, and giving notice of his probable inability to fill his contracts, unless there should be a great decline in prices, and saying to them: ‘Of course, after the time has elapsed for the goods to arrive, you must fill in your contracts and debit me with the loss, which in future I shall make every effort to settle, as I am determined not to suspend payment.’ The goods bargained for not arriving within the time stipulated, the plaintiff went upon the market at Bremen and bought for account of the plaintiff the bacon necessary to fill said contract, the price having then advanced considerably above the contract price, and charged the loss to the defendant.

The principal contest at the trial was upon the defense set up by the plea of the statute of limitations. Rev. St. c. 83. The defendant's position was that the contract was an unwritten one, and therefore subject to the limitation of five years provided by section 15 of said statute; while the plaintiff insists that it was in writing, and therefore subject to the limitation of ten years provided by section 16. It cannot be successfully contended, at least in this court, that there was not a contract of sale actually agreed upon and concluded between the parties. Said contract consisted of a proposition submitted by the plaintiff, and accepted by the defendant, through his agent. This the oral evidence tended to show, and we must presume, in affirmance of the judgment of the appellate court, that the fact which the evidence thus tended to prove was conclusively established. It being, then, accepted as a fact that such oral contract was made, was it properly evidenced by writing? ‘A written contract is one which, in all its terms, is in writing.’ ‘A contract partly in writing and partly oral is in legal effect an oral contract.’ Bish. Cont. §§ 163, 164. In case of specialties the contract is said to be merged in the writing; but it has been held that ‘a written contract not under seal is not the contract itself, but only evidence,-the record of the contract.’ Wake v. Harrop, 6 Hurl. & N. 768. But, where parties have deliverately put their contract into writing, the rule, doubtless, is that the writing is the exclusive evidence of what the contract is. Kimball v. Custer, 73 Ill. 389;Insurance Co. v. Morrison, 62 Ill. 242;Longfellow v. Moore, 102 Ill. 289. Looking to the writing, then, as the sole evidence of the contract, what do we find? The names of the contracting parties are given, with a proper description of the goods sold, the time and mode of delivery, the price and mode of payment, and all the terms which go to make up a completed contract of sale. But it is said that, because it is signed by one party only, it lacks mutuality; that is, it fails to show that it received the assent of the party not signing it, and therefore is no evidence of any contract whatever. This view, in our opinion, is unsound. Regarding the writing as an instrument of evidence, and testing it by the rules applicable to that subject, it constituted a declaration or acknowledgment by the defendant, and of course binding upon him, that he had ‘sold’ to the plaintiff the goods therein described upon the terms therein set forth. The word ‘sold’ imports, not a mere proposition to sell, but a consummated contract of sale. As said in Parton v. Crofts, 16 C. B. (N. S.) 11, where the same word was used: ‘It is impossible that there can be a sale without a purchase; the relation of buyer and seller can only exist where there are two parties to the bargain.’ So, in Butler v. Thomson, 92 U. S. 412, the court, in discussing the legal import of the same word, use very much the same language, viz.: ‘It seems clear that there can be no sale unless there is a purchase, as there can be...