Wiener v. Whipple

• Citation: 10 N.W. 433,53 Wis. 298
• Parties: WIENER v. WHIPPLE.
• Decision Date: 03 November 1881
• Court: United States State Supreme Court of Wisconsin

53 Wis. 298

10 N.W. 433

WIENER

v.WHIPPLE.

Supreme Court of Wisconsin.

Filed November 3, 1881.

Appeal from county court, Dodge county.

Harlow Pease, for respondent.

Smith, Rogers & Frank, for appellant.

TAYLOR, J.

This action was brought by the respondent to recover for a breach of contract for the purchase of 300 bushels of barley which he alleges he bought of the appellant, and which the appellant refused to deliver according to the terms of the contract. The evidence shows that, at the time of the alleged sale by the appellant to the respondent, the appellant, who was a farmer, had in his possession, on his farm, about 300 bushels of barley which he desired to sell, and that this fact was made known to the respondent; that the father of the appellant, acting as his agent, saw the respondent at his place of business, some distance from the place where the barley was, and made a sale of the same to the respondent. Upon such sale the respondent paid to the appellant's agent the sum of $25 upon the contract, which was received by the appellant from his agent. Upon making the sale the following writing was made and signed by the respondent, and by the father as agent of the appellant:

“Bought of Cass Whipple about 300 bushels of barley, at 65 cents for 50 pounds, to be delivered by the fifteenth of September next. Paid on same, $25.

A. WHIPPLE,

+-------------------------------------------+
                ¦Waterloo, August   24, 1880.¦S. M. WIENER.”¦
                +-------------------------------------------+
                

Upon the trial it was shown that the appellant, C. H. Whipple, delivered one load of barley to the respondent, which was accepted and paid for, and that he afterwards offered to deliver two loads more, which the respondent refused to accept, alleging that it was not of the quality which he bought; the respondent claiming that he bought the barley by sample, and that the barley tendered by the appellant was not as good a quality as the sample.

The learned counsel for the appellant alleges as error that the county court permitted the respondent on the trial to give parol evidence tending to show that the sale of the barley was by sample. The appellant objected to such evidence offered by the respondent on the trial, and also the evidence offered tending to show that the barley tendered and rejected was not of as good a quality as the sample. The evidence was admitted against his objection. The learned county judge instructed the jury that if they found from the evidence that it was a sale by sample, and the barley tendered by appellant was of a quality inferior to the sample, then the respondent was entitled to recover; but if they found it was not a sale by sample, then the appellant was entitled to their verdict. The appellant excepted to this instruction.

The case presents this question: Was it competent for the plaintiff, after having made and signed the writing above set forth, to show by parol that the purchase was a purchase by sample? The respondent testified that after he made the purchase of the agent of the appellant he paid the $25, and then took out his memorandum book, and wrote the above-quoted memorandum therein, which was signed by himself and the agent of the appellant. The respondent kept the memorandum in his possession. On the part of the learned counsel for the appellant it is urged that this writing is in itself a perfect contract, which shows on its face that the respondent purchased of the appellant 300 bushels of barley at a price named, to be delivered within a specified time; and that the same being signed by the agent of the appellant, although in the name of the agent, it bound the appellant to deliver the barley according to its terms. We are inclined to think the question of the admissibility of the parol evidence showing the terms of the sale depends upon the question whether the appellant was bound by the terms of the writing. If the appellant were not bound by its terms, then the respondent would not be. If the respondent, after making the contract of purchase, had made an entry of the terms of the sale in his memorandum book for the mere purpose of aiding his memory in regard to the matter, and for his own convenience, without requiring the agent of the appellant to sign the same, such memorandum would not constitute the contract between the parties, and would bind neither. It would have no greater effect as proof of the contract in fact made by the parties than any other entry made by a party to which he might refer for the purpose of refreshing his memory as to the terms of the transaction. The appellant would not be bound by such an entry, because made without his being called upon to consent to its terms, and the respondent would not be bound, because it would be held to be a mere memorandum of the transaction in aid of his memory, and not intended as binding him to its exact terms. The appellant would be at liberty to insist that the parol contract was the only contract he had made. The writing made, without his assent thereto, by the other party could in no way bind him, and consequently would not bind the other contracting party. If in such case the appellant insisted the parol contract was in fact the same as the writing made by the respondent in his memorandum book, such memorandum could be used as an admission of the respondent to support his version of the contract, and to that extent only would it be evidence for him.

The effect of a memorandum of sale, made without the assent or authority of all the parties to the contract, is illustrated by the decisions of the courts upon the sufficiency of such unauthorized memorandum to satisfy the statute of frauds. It has been often held that the party not assenting to the making of such memorandum is not bound thereby, and may prove the terms of the parol contract for the very purpose of showing that the memorandum does not state the real contract between the parties, and so defeat a recovery upon it under the statute of frauds for want of a sufficient note or memorandum thereof in writing. See Benj. Sales, (3d Am. Ed.) §§ 209, 212, and notes. It is evident that the principle of these cases can have no application to a case where it is shown that both parties have assented to and signed the writing. It is well settled by the authorities that where a writing contains in itself all the elements of a valid agreement to sell on the one part and buy on the other, so far as the writing sets out, either in express...