Miller v. Sharp
| Decision Date | 20 December 1912 |
| Docket Number | 7,776 |
| Citation | 100 N.E. 108,52 Ind.App. 11 |
| Parties | MILLER ET AL. v. SHARP |
| Court | Indiana Appellate Court |
From Clinton Circuit Court; Joseph Combs, Judge.
Action by Bert Miller and another against Noah B. Sharp. From a judgment for defendant, the plaintiffs appeal.
Affirmed.
George M. Smith and Sheridan & Gruber, for appellants.
Joseph Claybaugh, Thomas M. Ryan and James V. Kent, for appellee.
This is an action for damages alleged to have been sustained by appellants on account of the breach of a contract for the delivery of corn.
The complaint is in two paragraphs a demurrer to each of which was sustained. Appellants refused to plead further and judgment was rendered against them that they take nothing by their suit and that appellee recover his costs. From this judgment appellants appeal.
The errors relied on for reversal are as follows: (1) The court erred in sustaining the demurrer of appellee to the first paragraph of appellants' amended complaint; (2) the court erred in sustaining the demurrer of appellee to the second paragraph of appellants' amended complaint. Each paragraph is based on three separate letters, which taken together are relied on by appellants as forming the contract between them and appellee, for the breach of which this action was brought, and each paragraph avers, in substance that appellants are copartners, owning and operating a grain elevator in the town of Flora, Indiana, and "engaged in the business of buying grain at said town from farmers and other owners thereof to be delivered at their said elevator at said town of Flora where it was their custom to receive the same." The other averments of the complaint and the difference in the theory of the two paragraphs need not be considered or taken into account for the purposes of determining the question here presented. This is so because each paragraph of the complaint is based on the same letters, and must proceed on the theory that the contract is wholly in writing. If verbal it would be void under the statute of frauds, and this fact appearing on the face of each paragraph it would follow that no cause of action is stated in either. And where a written contract is relied on, the entire contract must be in writing, because if it is partly in writing and partly parol, it will be deemed to be, in law, a parol contract. Louisville, etc., R. Co. v Reynolds (1889), 118 Ind. 170, 172, 20 N.E. 711; Board, etc., v. Shipley (1881), 77 Ind. 553, 555; Pulse v. Miller (1881), 81 Ind. 190, 191; Stagg v. Compton (1881), 81 Ind. 171; Gordon v. Gordon (1884), 96 Ind. 134.
In fact, as we understand their brief, appellants recognize the law to be as above stated, their contention being that the three letters, made a part of each paragraph of complaint, when taken together, are of themselves sufficient to constitute a written contract between the parties. This being true, the only question to be determined is whether the three letters referred to are sufficient to constitute such contract.
We set out these letters in full. According to the averments of the complaint, the first letter was written by appellee after a conversation held between him and appellant Bert Miller over the telephone, and is as follows:
Flora, Ind.
Dear Sir
Will write you one cannot talk on phone what they would like always to say what can you engage new corn at delivered in Dec. I may sell mine So if you are not to busy drop me a letter this afternoon and Say what Price you will give for the new and what is the Best for the old corn I want to clean up ever thing this fall get all the money I can and have a good time Spending it and the Oats if you can See yourself out would like if you would make it 35 although they are yours at the Price named on the Phone do the Best for me as you always have and I will Stay with you let me know and I may come over this afternoon
N. B. Sharp."
It is averred that this letter was received by appellants the day it was written, and Mr. Miller, on behalf of himself and his coappellant, answered it on the day it was received, as follows:
Frankfort, Ind.
It is then averred that appellee by return mail--namely, on August 4, 1909--accepted said proposition for the new corn then growing on the farm, and to be harvested in 1909, which said letter of acceptance is in the words and figures following:
It is insisted by appellee that the judgment of the court below, holding that these letters were not sufficient to show a contract between the parties, was correct for the following reasons: (1) Because the letters themselves do not indicate where the corn was to be delivered, and that in such case the delivery would be presumed to be at the place where the corn was situated at the time of the making of the contract, and that the complaint does not aver a demand by appellants at such place. (2) Because appellants' proposition to pay forty-five cents a bushel for the new corn and ninety-four cents a hundred for the old was made subject to the condition that it was on that day's bid, and that the letter showing the alleged acceptance of the proposition shows that such acceptance was not had until the following day. (3) Because appellee's first letter to appellants showed a desire on his part to sell all of his corn, both old and new, and that he sought a proposition covering the corn, both old and new; that appellants' proposition was made fixing a price on the old corn as well as the new, and that the alleged acceptance related to the new or growing corn only, and was not an acceptance of the proposition as made; that for this reason appellants could have refused to comply with their proposition, and this being true and appellants not being bound by an offer accepted in part only, it follows that appellee was not bound by such acceptance.
As to the first ground of appellee's contention, it is insisted by appellants, in effect, that while the letters in this case must be sufficient to create the contract, they may be read and interpreted in the light of a known custom or usage of the parties to the contract in relation to the place of delivery, and that the averments of each...
To continue reading
Request your trial