Smith v. Colby
| Decision Date | 29 February 1884 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Hugh Smith & another v. Benjamin F. Colby |
Exceptions sustained.
F. T Greenhalge, for the defendant.
G Stevens & G. H. Stevens, for the plaintiffs.
W. Allen J. C. Allen & Holmes, JJ., absent.
This is an action, upon an account annexed, for goods sold and delivered. The answer sets up the breach of a special contract to deliver goods. To prove the contract, the defendant offered a memorandum signed by himself, in connection with two letters written by the plaintiffs to the defendant. The presiding judge ruled that the contract alleged in the answer was not proved by the memorandum and letters. We think that the learned judge erred in this ruling. The letters, on their face, sufficiently refer to the memorandum. The memorandum was produced by the plaintiffs on the call of the defendant, and contains an agreement by the plaintiffs to furnish 10,000 croquet sets to the defendant at a price named. It is dated at Lowell, November 19, 1881. The defendant lived in Lowell; the plaintiffs, in Vermont. The first letter is dated November 29, 1881, and in it, over the plaintiffs' signature, are the words, "We will undertake the croquet job upon the terms agreed upon when at your place." The other letter is dated March 7, 1882, and in it are the words, "We wrote you that we would undertake the job of 10,000 sets." The first letter must be presumed to refer to the agreement signed by the defendant and in the possession of the plaintiffs, and the memorandum and that letter would be sufficient to prove a memorandum signed by the plaintiffs, within the statute of frauds; and proof of such a memorandum is sufficient proof of a contract in writing, as alleged in the answer.
Counsel for both parties have assumed in the argument, that the question whether there was a variance between the contract alleged in the answer and the memorandum offered in evidence was open on these exceptions. It does not appear that the defendant made any request for a ruling that there was a variance, or that the objection was raised at the trial. If it had been, it might have been obviated by amendment. The ruling made by the court was that the contract alleged in the answer was not proved by the memorandum and letters. The answer alleged a contract in writing, and this ruling naturally refers to the...
To continue reading
Request your trial
-
Houston & Brazos Valley Railroad Co. v. Joseph Joseph & Brother Co.
... ... thing in the same sense. Runyon v. Wilkinson Gaddis & Co., 57 N. J. L. 420; Sarrons v. Richards, 151 ... Mo.App. 656; Bailey v. Smith & Moorhead, 122 Mo.App ... 268; Gaus & Sons Mfg. Co. v. Lumber Co., 115 Mo.App ... 114; Denton v. McInnis, 85 Mo.App. 542; Mill Co ... v ... Clark v. Dales, 20 Barb. 42; Brisban v. Boyd, 4 ... Paige, 17; Abbott v. Shepard, 48 N.H. 14; ... Hart v. Bray, 50 Ala. 446; Smith v. Colby, ... 136 Mass. 562; Vassar v. Camp, 11 N.Y. 441; ... Thevor v. Wood, 36 N.Y. 307; Dana v. Short, ... 81 Ill. 468; Thames L. & T. Co. v. Beville, ... ...
-
Mead v. Leo Sheep Co.
... ... 308; Andrew Stephens Pl, 228. The general rule obtains ... in Ohio; Headington v. Neff, 7 O. 228; Remheimer ... v. Carter, 31 O. S. 579; Smith v. R. R. Co., 11 ... N. P. N. S. 65. Our procedure is taken from Ohio, so the rule ... obtains here and finds almost universal concurrence among ... Talbot, 95 U.S. 289; No ... Platte Co. v. Price, supra. Illustrations of the rule are ... shown in the following cases; Smith v. Colby, 136 ... Mass. 562; Marks v. Cowdin, 226 N.Y. 138; Thayer ... v. Luce, 22 O. S. 74; Benjamin on Sales, page 193; 27 C ... J. 262; Brewer v. Horst ... ...
-
Spence v. Lawrence
...the proof. If there was such a variance, as it was not claimed at the trial it cannot be raised in this court for the first time. Smith v. Colby, 136 Mass. 562; Walker v. Russell, 240 Mass. 386, 393, 134 N.E. The remaining contention of the defendant is that while the plaintiff's purchaser ......
-
Dwyer v. Fuller
...Stahl, 7 Allen, 303, 304; Bond v. Bond, Id. 1, 6; Franklin Sav. Inst. v. Reed, 125 Mass. 365; Bell v. Walsh, 130 Mass. 163, 166; Smith v. Colby, 136 Mass. 562. The fact that bill of exceptions purports to recite all the evidence does not prevent the application of the rule, for it has its r......