Miller v. Sharp, No. 7,776.

• Docket Nº: No. 7,776.
• Citation: 52 Ind.App. 11, 100 N.E. 108
• Case Date: December 20, 1912
• Court: Court of Appeals of Indiana

52 Ind.App. 11
100 N.E. 108

MILLER et al.
v.
SHARP.

No. 7,776.

Appellate Court of Indiana, Division No. 1.

Dec. 20, 1912.

Appeal from Circuit Court, Clinton County; Joseph Combs, Judge.

Action by Bert Miller and others against Noah B. Sharp. From a judgment sustaining a demurrer to the complaint, plaintiffs appeal. Affirmed.

George M. Smith, of Delphi, and Sheridan & Gruber, of Frankfort, for appellants. Joseph Claybaugh, Thomas M. Ryan, and James V. Kent, all of Frankfort, for appellee.

HOTTEL, J.

This is an action for damages alleged to have been sustained by the 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. The 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 appealed.

The errors relied on for reversal are: (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 of these paragraphs are based upon 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, Ind., 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 upon the theory that the contract is wholly in writing. If verbal, it would be void under the statutes of frauds, and, this fact appearing on the face of each of the paragraphs,

[100 N.E. 109]

it would follow that no cause of action is stated in either.

[1] And, where a written contract is relied on, the entire contract must be in writing, because, if it be partly in writing and partly parol, it will be deemed to be in law a parol contract. L. N. A. & C. R. Co. v. Reynolds, 118 Ind. 170-172, 20 N. E. 711;Board v. Shipley, 77 Ind. 553-555;Pulse et al. v. Miller et al., 81 Ind. 190, 191;Stagg v. Compton, 81 Ind. 171;Gordon v. Gordon, 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 part of each of the paragraphs 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 or not 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 the appellee after a conversation held between him and appellant Bert Miller over the telephone, and is as follows: “Frankfort, Ind. August 3, 1909. Mr. Bert Miller, 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 buisy 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 every 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 allways have and I will Stay with you let 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 coappellant answered the same on the day it was recieved as follows: “Flora, Ind. Aug. 3, 1909. Mr. N. B. Sharp, Frankfort, Ind.-Sir: Yours at hand and note you say you want...