North & Co. v. Mendel

• Decision Date: 19 December 1884
• Citation: 73 Ga. 400
• Court: Georgia Supreme Court
• Parties: NORTH & COMPANY v. MENDEL & BROTHER.

73 Ga. 400

NORTH & COMPANY v. MENDEL & BROTHER.

Supreme Court of Georgia.

December 19, 1884

September Term, 1884.

1. The evidence being conflicting, there was no abuse of discretion in refusing a new trial on the ground that the verdict was contrary to law and evidence.

2. The statute of frauds does not require that all the terms of the contract should be agreed to or written down at one and the same time, nor on one piece of paper; but where the memorandum of the bargain is found on separate pieces of paper, and where these papers contain the whole bargain, they form together such a memorandum as will satisfy the statute provided the contents of the signed paper make such reference to the other written paper or papers as to enable the court to construe the whole of them together as containing all the terms of the bargain. If, however, it be necessary to adduce parol evidence, in order to connect a signed paper with others unsigned, by reason of the absence of any internal evidence in the signed paper to show a reference to or connection with the unsigned papers, then the several papers taken together do not constitute a memorandum in writing of the bargain, so as to satisfy the statute.

( a. ) Certain parties made a bargain of purchase with a person in Savannah, Ga., claimed by them to be the agent of the vendors, and claimed by the vendors to be a broker. This person sent the following telegram to the vendors: " Mendel five bellies, eight. Ehrlich offers seven-eights ten bellies lighter than last." On the same day he made the following entry in his entry book: " Sold account C. H North & Co., Mendel, 5 bellies 8:"

Held, that this was not a sufficient memorandum in writing to comply with the requirements of the statute of frauds, so as to bind Mendel & Brother as purchasers. It fails to set out the purchasers or the quantity and price of the article sold, and parol evidence was not admissible to supply these defects.

( c. ) To the exceptions made by the Code to the statute of frauds and perjuries (29 Ch. II.) other will not be added by construction.

Statute of Frauds. Evidence. Contracts. Before Judge HARDEN. City Court of Savannah. May Term, 1884.

Reported in the decision.

LAWTON & CUNNINGHAM, for plaintiffs in error.

RICHARDS & HEYWARD, for defendants.

HALL Justice.

The plaintiffs brought suits against M. Mendel & Brother, a firm composed of Meyer Mendel and Joseph Mendel, upon an account for five boxes pork bellies, 124 pieces, 2,817 pounds, at 8 cents, $225.36, sent from Boston on the 17th of January, 1884, to Savannah, per steamship City of Columbus. The goods were sent upon the order of George C. Freeman, who was alleged by the plaintiffs to be a broker, but who was regarded by the defendants as the plaintiffs' agent, and dealt with by them, according to their evidence, in the latter character. This shipment was made upon a telegram sent from Savannah to Boston, on the 16th day of January, 1884, by George C. Freeman to plaintiffs, which was as follows:

" Mendel five bellies, eight. Ehrlich offers seven-eights ten bellies lighter than last."

In Freeman's entry book, under this date, the following appears, as was proved, in his own handwriting:

" Sold account C. H. North & Co., Mendel, 5 bellies, 8."

This telegram, together with the entry, was the only note or memorandum in writing of the contract sued on. The steamship, shortly after sailing, was wrecked, and her cargo was lost. The goods never reached the defendants. Under the evidence in the case, the jury found for the defendants, and a motion made for a new trial was overruled. On the judgment overruling this motion, error is assigned.

The defence set up was that the suit was upon a contract for the sale of goods amounting to fifty dollars and more; that the defendants never accepted and received any part of the same; gave nothing in earnest or part payment to bind the bargain; and that the promise was not in writing and signed by them, nor by any person authorized by them to do so. Code, §1950, sub-sec. 7. It is conceded that if Freeman did not act as a broker in the transaction, and if the word " " Mendel" in his entry book is not the signature of defendants, which he was authorized to make, and if the delivery of the goods on board the vessel consigned to them, was not an acceptance and delivery of the same to them, then they are not liable under this section of the Code, and their defence must prevail. The verdict seems, for these reasons, to have been sustained by the lower court, the evidence on both points being conflicting.

The testimony of the defendants, which the jury had a right to credit, showed that they did not then, and had never dealt with Freeman as a broker, but had always dealt with him as the agent of the plaintiffs, and had never iven him authority to sign their names to that or any other promise in writing that Freeman came to them on the occasion in question, as he had...