Price v. Stipek

• Decision Date: 11 October 1909
• Citation: 104 P. 195,39 Mont. 426
• Parties: PRICE et al. v. STIPEK.
• Court: Montana Supreme Court

104 P. 195

39 Mont. 426

PRICE et al. v. STIPEK.

Supreme Court of Montana

October 11, 1909

Appeal from District Court, Dawson County; C. H. Loud, Judge.

Action by Milbert F. Price and another, copartners doing business as the Puritan Manufacturing Company, against J. J. Stipek. From a judgment for defendant, on demurrer to the complaint plaintiffs appeal. Affirmed.

Donald Campbell, for appellants.

C. C Hurley, for respondent.

HOLLOWAY J.

The complaint in this action alleges: "That on July 17 1905, at defendant's place of business at said city of Glendive, plaintiff's traveling agent solicited and defendant gave his order, written upon plaintiff's regular form, for certain articles of jewelry of the value of three hundred eighty ($380) dollars, *** and then and there made and executed, subject to plaintiff's approval and acceptance, a certain memorandum of sale of said articles of jewelry, *** a copy of which memorandum of sale is hereto attached and annexed and marked 'Exhibit A,' and is hereof made a part." It is then alleged that this memorandum was received by the plaintiffs and approved by them; that they delivered the goods "in said memorandum of sale set forth" to a common carrier, consigned to the defendant at Glendive; and that they have fully performed all the terms of the memorandum by them to be performed, but that defendant has neglected and refused to pay for the goods or any of them. The prayer is for a judgment for $380 and legal interest thereon from July 27, 1905. Attached to this complaint is the memorandum marked "Exhibit A." The defendant interposed a general and special demurrer, which was sustained by the trial court, and plaintiffs, having declined to plead further, suffered judgment to be rendered and entered against them, from which judgment they have prosecuted this appeal.

In the judgment it is recited that in sustaining the demurrer the trial court held that the complaint does not state facts sufficient to constitute a cause of action. Whether it does or does not is to be determined by reference to the legal effect, if any, of the so-called memorandum. Counsel in their briefs have treated the matter as though the complaint alleges that an oral contract for the sale of goods amounting to more than $200 was made, and that Exhibit A was intended as a note or memorandum of such contract, and the argument is then directed to the question: Is this Exhibit A a sufficient note or memorandum to take the case out of the operations of the statute of frauds? If that question was before us, we would probably reach the same conclusion which we reach now but that question is not before us.

The allegation of the complaint is that the defendant gave his order for the goods by virtue of his having signed this Exhibit A.

The complaint is not susceptible of any other construction. And this brings us to a consideration of the question: Is this Exhibit A such an instrument that upon approval by plaintiffs it evidences a contract which can be enforced at law? The exhibit is a unique document. It covers 5 1/2 pages of the transcript, and to set it forth at length would extend this opinion unnecessarily. Much of it is devoted to extravagant advertising of the goods mentioned in it. For the purposes of this appeal, it will be sufficient to copy portions of one paragraph and the concluding portion of the memorandum, as follows: "Individuality. For the purpose of giving our goods an individuality not enjoyed by other manufacturers and to so far as possible exclude the general mixing of the goods of various factories, which, to a certain extent, precludes the possibility of building up a reputation among the customers, we place the following factory line of rolled gold plate, gold front, gold filled, sterling silver and oxidized finished articles in assorted styles and paterns, on our most liberal and beneficial conditions. Belt buckles or pins...