Smith v. International Paper Co., 95-1592

• Decision Date: 13 August 1996
• Docket Number: No. 95-1592,95-1592
• Citation: 87 F.3d 245
• Parties: James W. SMITH, Plaintiff-Appellant, v. INTERNATIONAL PAPER COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 245

87 F.3d 245

James W. SMITH, Plaintiff-Appellant, v. INTERNATIONAL PAPER COMPANY, Defendant-Appellee.

No. 95-1592.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 13, 1995.

Decided June 24, 1996.

Rehearing Denied Aug. 13, 1996.

Charles E. Rendlen, Jr., Hannibal, MO, argued, for appellant.

Randy R. Mariani, St. Louis, MO, argued, for appellee.

Before McMILLIAN and LOKEN, Circuit Judges, and DUPLANTIER, ^* District Judge.

PER CURIAM.

In this diversity action for breach of contract, the district court ¹ granted summary judgment in favor of defendant International Paper Company ("IP"), concluding that plaintiff James W. Smith failed to satisfy the Missouri statute of frauds. See Mo.Rev.Stat. § 432.010. Smith appeals, conceding that the statute of frauds applies to his alleged contract to purchase an IP lumberyard, but arguing that he submitted sufficient documentary evidence of that contract. We affirm.

In 1989, IP decided to sell its retail lumberyard in Hannibal, Missouri. Smith, the lumberyard's manager, expressed an interest in buying it. Smith and IP eventually signed an Asset Purchase Agreement dated March 20, 1990 (the "March 20 Agreement"). However, Smith quickly concluded that the purchase price in the March 20 Agreement was too high. Therefore, he did not seek Small Business Administration financing, as the March 20 Agreement required, and notified IP that he did not intend to go forward under that Agreement.

Beginning in July 1990, Smith submitted a series of new purchase offers, which IP rejected. On November 16, he submitted another written offer, "subject to the approval of a local lending institution and the Small Business Administration." Three days later, an IP "E-mail" message requested confirmation that Smith's latest proposal included an undertaking to retain the lumberyard's employees; Smith agreed. On November 30, there was a telephone conversation between Smith and IP's comptroller. Crediting Smith's version of that conversation, as we must in reviewing the grant of summary judgment, the comptroller orally accepted Smith's November 16 offer, requesting that Smith provide a $10,000 down payment and the requisite financing commitment.

On December 4, Smith mailed IP a $10,000 check and a letter from Hannibal National Bank that was supportive but not a firm loan commitment. IP initially endorsed and deposited Smith's check. However, on December 21, IP wrote Smith rejecting his "conditional" offer. IP then returned Smith's $10,000 and sold the lumberyard for a lower price to a buyer with secure financing. Smith sued, claiming breach of a contract to sell him the lumberyard.

To satisfy the Missouri statute of frauds, a writing must contain all the essential terms of the contract and must be signed by the party to be charged. Several documents in combination may supply the essential terms of the contract, "as long as one document refers to the other, or their contents clearly show they are related." Vess Beverages, Inc. v. Paddington Corp., 941 F.2d 651, 654 (8th Cir.1991). Whether documents satisfy the statute of frauds is a question of law. Ahrens v. Dodd, 863 S.W.2d 611, 613 (Mo.App.1992).

We agree with the district court that Smith has not satisfied the statute of frauds. Smith first contends that the March 20 Agreement satisfies the statute because the parties later simply modified its terms. This fact-intensive theory was not pleaded or argued in the district court and may not be raised initially on appeal. See Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729, 734 (8th Cir.1993). Moreover, contracts required to be written under the...