Smith v. Shell

• Decision Date: 30 April 1884
• Parties: SMITH et al. v. SHELL, Appellant.
• Court: Missouri Supreme Court

82 Mo. 215

SMITH et al.

v.SHELL, Appellant.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Audrain Circuit Court.--HON. ELIJAH ROBINSON, Judge.

REVERSED.

Ira Hall, for appellant.

The memorandum offered by plaintiffs should have been excluded. There was a fatal variance between the contract counted on and that shown by the memorandum. The latter was insufficient under the statute of frauds; its omissions cannot be supplied by parol testimony. Benjamin on Sales, (2 Ed.) § 254, p. 215; 1 Greenleaf Ev., § 268; 2 Whart. Ev., § 871; Browne Stat. Frauds, §§ 371, 371a, 376, 384, 420; Story on Sales, §§ 269, 272; Woods on Master and Servant, § 195, pp. 377, 378, and notes of cases on pp. 378, 379, (Ed. 1877). Delventhal v. Jones, 53 Mo. 463; Stone v. Brown, 68 N. Y., p. 598; Bailey v. Ogden, 3 Am. Dec., 509; Lee v. Hills, Sup. Ct. Ind., 9 Cent. Law J. 436. Even if the contract were valid under the statute of frauds, defendant was released by neglect of plaintiffs to demand and offer to pay for the corn in a reasonable time. Defendant's objections to the evidence as to value of the corn should have been sustained. Evidence as to value of the corn, should have been confined to its value in pens on defendant's farm at the time it was to be delivered. Rickey v. Tenbroeck, 63 Mo. 563.

Macfarlane & Trimble for respondents.

The writing was a sufficient memorandum of the contract to comply with the statute of frauds. The law does not require the contract to be reduced to writing, but merely that “some note or memorandum in writing be made of the bargain.” R. S. 1879, § 2514; Wiley v. Robert, 27 Mo. 388; Wiley v. Robert, 31 Mo. 212; Salmon Falls Mfg. Co. v. Goddard, 14 How. 446.

HENRY, J.

This is a suit by which plaintiffs seek to recover damages for breach of a contract for the sale and delivery of one thousand barrels of corn, alleged to have been purchased by them of the defendant. The petition alleges in substance, that on or about the 1st of November, 1879, they bought of defendant one thousand barrels of corn, a portion of which was then cribbed or penned, and the balance ungathered, for which plaintiffs were to pay $1,035, ten of which was paid, and the balance to be paid when defendant should gather and put the balance of the corn in pens. That he agreed to gather and put it in pens within a reasonable time thereafter, in order that plaintiffs might have the same in readiness to ship and sell upon any rise in the market that might thereafter occur. Then follows allegations of the breach of said contract.

The statute of frauds was pleaded with other defences which it is unnecessary to notice specially.

The cause was tried by the court without a jury, and from a judgment in plaintiffs' favor, defendant appeals. The following is the written memorandum of the bargain relied upon by plaintiffs:

“NOVEMBER 1st, 1879.

This is to certify that I have sold to L. C. Smith and J. A. Smith 1,000 barrels of corn for the sum of one thousand and thirty-five dollars ($1,035).

J. R. SHELL.”

Lowry Smith, one of plaintiffs, testified that the corn by the agreement, was to be delivered in ten days, or two weeks. That defendant was to gather the corn and put it in pens or cribs, and to shell it at defendant's farm, where it was to be weighed.

Without detailing the evidence in relation to other matters, we shall proceed to consider whether the memorandum taken in connection with Lowry Smith's testimony is a sufficient memorandum of the contrac under the statute, which declares that:

“No contract for the sale of goods, wares and merchandise, for the price of $30, or upwards, shall be allowed to be good, unless the buyer shall accept part of the goods so sold and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or unless some note or memorandum in writing be made of the bargain and signed by the parties to be charged with such contract, or their agents lawfully authorized.” All the authorities are agreed, that the contract must be stated with reasonable certainty, so that its substance will appear from the writing itself, without any recourse to parol evidence. Story on Sales, § 269; Browne on the Statute of Frauds, § 384; Benjamin on Sales, §§ 249, 250; Hilliard on Sales, pp. 624, 629; 1 Greenleaf's Ev., § 268. It is not essential to the validity of a contract, that it should stipulate for any time or place of delivery; but if there be such a stipulation, the memorandum must contain it. Browne on the Statute of Frauds, § 384; Benj. on Sales, §§ 209, 210, 251, 349; Story on Sales, 270. The memorandum must contain all the material terms of the contract. One exception, the only one, is that of the consideration upon which the promise is founded, allowed by most of the American, but not by the English courts. The time and place of delivery are material stipulations, in all contracts for the purchase and delivery of chattels. If the time and place had not been agreed upon, the memorandum would have been construed as a contract for delivery in a reasonable time, and at the vendor's customary place.

But when time or place is stipulated, it goes to the ssence of the contract, and must appear in the memorandum. The contract so far as expressed, and so far as the law would supply terms, unexpressed, was to deliver the corn in a reasonable time.

Plaintiff testified, in effect, that such was not the contract, but that the corn was to be delivered in ten days or two weeks. Some of the authorities, mostly English, hold that in order to show the insufficiency of the memorandum, it is competent for the defendant to prove, that a material stipulation in the contract entered into is not contained in the memorandum....