Peirson-Lathrop Grain Co. v. Barker

• Decision Date: 10 May 1920
• Docket Number: No. 13375.,13375.
• Citation: 223 S.W. 941
• Parties: PEIRSON-LATHROP GRAIN CO. v. BARKER.
• Court: Missouri Court of Appeals

223 S.W. 941

PEIRSON-LATHROP GRAIN CO. v. BARKER.

No. 13375.

Kansas City Court of Appeals. Missouri.

May 10, 1920.

Appeal from Circuit Court, Cass County; Chas. E. Calvird, Judge.

"Not to be officially published."

Action by the Peirson-Lathrop Grain Company against James R. Barker. From judgment for plaintiff, defendant appeals. Reversed and remanded.

T. B. Wallace, of Kansas City, and T. N. Haynes, of Harrisonville, for appellant.

W. S. Byram, of Harrisonville, and Kenneth W. Tapp, of Kansas City, for respondent.

BLAND, J.

This is an action for damages for the nondelivery of a car of corn and one of oats sold by defendant to plaintiff. There are two counts, one for the corn and one for the oats. The verdict and judgment went for plaintiff, and defendant has appealed.

On October 16, 1917, an agent of plaintiff called defendant, a grain dealer at Raymore, Mo., over the long distance telephone and purchased one car of corn of 1,000 bushels, No. 3 or better, at $1.20 per bushel, to be delivered at Kansas City, Mo., by November 15, 1917. Another agent of plaintiff called personally upon defendant on October 16th and orally purchased a car of No. 3 or better oats at 56 cents per bushel, f. o. b. Raymore, to be delivered in 10 days. Thereupon plaintiff wrote defendant two letters of confirmation. The one confirming the purchase of corn was as follows:

                          "Kansas City, Mo., Oct. 16, 1917
                

"Jas. R. Barker, Raymore, Mo. — Dear Sir: We confirm purchase of you per phone 2:50 p. m. of * * * car 1,000 bushels corn No. 3 or better @ 1.20. Basis of Kansas City * * * Kansas City grades, Kansas City weights * * * off if No. 3 by Nov. 15th. Shipment bill cars to us C C C Kansas City, Mo. * * *

"If shipments not made in time specified, our option to accept, reject, extend time, or buy in for shippers account."

The letter confirming the purchase of oats was as follows:

                            "Kansas City, Mo., Oct. 16, 1917
                

"Mr. Jas. R. Barker, Raymore, Mo. — Dear Sir: We confirm purchase of your per E. R. Jessop, of * * * car 1,800 bushels oats * * * No. 3 or better @ 56c. Basis of f. o. b. Raymore. Kansas City grades, Kansas City weights * * * off if No. 3, 10 days * * * Shipment. Bill cars to us Kansas City, Mo. * * *

"If shipments not made in time specified, our option to accept, reject, extend time, or buy in for shipper's account."

These letters contained some other provisions not now important. On November 9, 1917, plaintiff wrote defendant another letter as follows:

                                            "November 9, 1917
                

"James R. Barker, Raymore, Mo. — Dear Sir: On October 16th we purchased from you 1,800 bushels of No. 3 or better oats to be shipped within 10 days.

"This car has not been shipped and our customer is beginning to become very impatient at the delay.

"We are granting you an extension of time until November 15th and hope you will get the car out without fail.

"Please let us know just what we may expect in connection with this shipment.

                    "Very truly Yours
                          "Peirson-Lathrop Grain Company."
                

On November 13, 1917, plaintiff wrote defendant the following letter: "

                                 "November 13, 1917
                

"James R. Barker, Raymore, Mo. — Dear Sir: We have a 1,000 bushel car of No. 3 or better corn purchased from you for November 15th shipment.

"Will you please phone or wire us to-morrow, as soon as you receive this letter, whether you are going to be able to get this corn out within contract time.

"We have some sales expiring on November 15th and are very anxious to know whether we are going to be able to get enough corn to fill these sales.

                     "Yours truly,
                            "Peirson-Lathrop Grain Company."
                

On November 15, 1917, defendant wrote the following letter to plaintiff:

                              "Raymore, Mo., Nov. 15, 1917.
                

"Peirson-Lathrop Grain Co. — Sirs: The car of corn I sold you to deliver by the 15th is too wet to shell and I can't get any cars to ship in. When the corn gets dry enough to shell I will send you the corn.

"If you will have a car set in for the oats I sold you I will load them out right away. I have not had a car for a long time. There is no show for any in sight.

                    "Yours,                   J. R. Barker."
                

This is the only letter written by the defendant. The grain was never shipped or delivered.

It is claimed by defendant that the foregoing correspondence is not sufficient to satisfy the statute of frauds, for the reason that the letter of November 15th does not acknowledge receipt of or in any way refer to or adopt plaintiff's confirmatory letters, but that such letter, if it refers to anything, refers to the oral sales made by plaintiff's agents, and that defendant is not bound by the ex parte statement in plaintiff's letters as to what the latter claimed were the terms of the contract. There is no contention on the part of plaintiff that the letter written by the defendant of itself is enough to comply with the statute of frauds, requiring a memorandum, signed by the party, to be changed; but it insists that taking the letters together (the two confirmatory letters and defendant's letter) there is an implied reference to each other, and that these letters clearly disclose the names of the contracting parties, the subject-matter, and the price, and that none of the essential terms required to constitute a sale is absent.

The rule governing a situation of this kind is found in Peycke Bros. v. Ahrens, 98 Mo. App. 456, 458, 459, 72 S. W. 151, as follows:

* * * The memorandum of a contract for the sale of land, to satisfy the statute of frauds, may consist wholly of letters, if they are connected by reference, express or implied, so as to show on their face that they all relate to the same subject-matter. This relation cannot be shown by parol, but it must appear from the nature of the contents of the letters, or by express reference therein to each other. * * * But if each of the writings be so signed, such reference [express reference] to the other need not be made, if, by inspection and comparison it appears that they severally relate to, and form a part of, the same transaction."

The same rule is announced in Leesley Bros. v. Fruit Co., 162 Mo. App. 195, 203, 144 S. W. 138.

We think that while defendant does not expressly refer in his letter of November 15, 1917, to the confirmatory letters written by the plaintiff, there is no question but that there is an implied reference. Plaintiff had written two letters, one confirming the purchase of the corn and the other the oats. It appears from the correspondence that plaintiff had sold corn and oats with the expectation of fulfilling its contracts out of the grain to be delivered by defendant, and plaintiff was anxious to know if the grain was to be delivered on time and wrote said letters, dated November 9 and November 13, 1917, inquiring if delivery would be made by the time specified. The letter of November 9th in reference to the oats, which, according to the oral agreement, were to be delivered within 10 days after October 16th, extended the time of the delivery until November 15th, on which date defendant wrote his letter. Defendant in at least a part of his letter evidently did not refer to the oral agreements, as he gives excuses as to why he had not been able to ship either the corn or the oats, and the letter was not written on the day that the oats were orally contracted to be delivered, but on the day to which plaintiff's letter of November 9th extended the time for the delivery of the oats.

Assuming, as we must, that defendant, when he wrote his letter in which he used the words "the corn I sold you" and "the oats I sold you," knew that the oral contracts were not enforceable in the absence of some writing and assuming further that he had before him plaintiff's letters of October 16th, in both of which plaintiff stated "we confirm purchase," etc., it is apparent that defendant referred to the oral contracts as confirmed by plaintiff's letters. In other words, defendant meant to refer to plaintiff's said letters and thus make an enforceable sale when he said the corn and oats "I sold you." Defendant's letter does not indicate that he was referring to any unenforceable oral agreements, but rather to both the agreements and the confirmatory letters. We think that all of these letters, written by both parties, impliedly referred to each other, and taken together show such reference without going outside of the letters themselves, except to determine the circumstances under which they were written which both parties, in effect, concede we may do. Defendant has us apply that procedure in this case when he refers to the oral agreements in discussing this point in his brief. There is no question but that said letters contain all the necessary provisions to evidence an enforceable contract of sale under the statute of frauds. Of course, in discussing this point we assume that defendant received the letters. Whether he did is discussed later. The facts in this case are entirely unlike those in the case of Fowler Elevator Co. v. Cottrell, 38 Neb. 512, 57 N. W. 19, cited by the defendant. In that case the letters written by the seller repudiated the oral contract of sale. Ringer v. Holtzclaw, 112 Mo. 519, 20 S. W. 800, Boyd v. Paul, 125 Mo. 9, 28 S. W. 171, and defendant's other cases, are not in point.

It is claimed by ...