Williams v. Robinson

• Court: Maine Supreme Court
• Writing for the Court: VIRGIN, J.
• Citation: Williams v. Robinson, 73 Me. 186 (Me. 1882)
• Decision Date: 20 February 1882
• Parties: W. F. WILLIAMS v. JOSEPH E. ROBINSON.

73 Me. 186

W. F. WILLIAMS v. JOSEPH E. ROBINSON.

Supreme Judicial Court of Maine.

February 20, 1882

ON EXCEPTIONS from superior court.

Assumpsit for damages for alleged breach of contract.

At the trial the plaintiff offered in evidence the following paper which was objected to by the defendant as insufficient, under the statute of frauds, because it shows no consideration, and is indefinite as to the amount to be delivered; but it was admitted by the court:

" Augusta, June 8, 1880. I hereby agree to furnish M. F Williams of New Haven, (post office address West Haven,) eight hundred to one thousand tons of ice, delivered on board vessels at Augusta, Maine, properly packed for a voyage to New Haven, for the sum of two dollars per ton.

Bond Brook Ice Company,

J. E Robinson, Augusta, Maine."

The presiding judge iustructed the jury as follows: That " it was incumbent upon the plaintiff to satisfy the jury by a preponderance of the evidence, that the contract set out in the writ was entered into substantially as therein set forth by this defendant, and at the time of the alleged breach, it was a valid, binding contract on the part of this defendant. When he thus establishes the defendant's liability under that contract, the burden will be upon the defendant to satisfy you that he has performed, or in some way relieved himself from the obligation thus established."

The court instructed the jury that " the day of the breach of the contract was the time when the ice should have been delivered after demand made by plaintiff and notification from him that he was ready to receive the ice."

The defendant, having introduced testimony tending to prove the facts assumed in the instructions asked for, requested the court to instruct the jury as follows:

1. " That if the jury found it was agreed upon by the parties that the ice was all to be delivered by the last of July, the memorandum introduced by the plaintiff not containing such a stipulation, it was insufficient, and the plaintiff cannot recover."

2. " That if the jury was satisfied from the evidence that the forwarding a draft for the sum of seven or eight hundred dollars by the plaintiff immediately upon his return to New Haven, and before any ice was shipped, was one of the conditions of the bargain, the memorandum relied upon, was insufficient, and the plaintiff could not recover."

3. " That if the jury find that the ice was to be delivered by successive shipments, at different times, and that a draft for a sum covering any such shipments was to be sent before any such shipment was made,--no such condition or stipulation appearing in the memorandum, it is insufficient, and the plaintiff cannot recover."

In relation to the Bond brook ice referred to in the judge's charge, William W. Ward, called by plaintiff, testfied:

Question. Did you observe the quality of the Robinson ice?

Answer. I did. It was ice I should say, cakes about twenty-two to twenty-four inches through, about the same thickness, and about four feet long, and the handsomest ice I ever saw. There was not a particle of snow on it, and they were just as square as bricks, as handsome ice as I ever saw, that was then loading at the vessel. And afterwards I went up to the house and saw it there.

Question. How did that correspond with the ice you have just described?

Answer. It was the same I saw at the dock.

Daniel B. Snow, called by defendant:--I went to Robinson's with the plaintiff. Plaintiff said he would like to see the ice, and Robinson told me to go with him and show him the ice. I went with him, and he saw it. I showed him the ice at the ice house. He said it was good ice.

The court instructed the jury as follows: " I instruct you, that the plaintiff, as well as the defendant, must be bound by the language in this contract. It does not call for first quality of ice. It does not call for Bond brook ice. The defendant might have gone into the market and fulfilled his obligation imposed by this contract, by furnishing any merchantable ice in this market."

The several instructions requested by the defendant, were not given, except as appears in the charge.

To the above instructions and rulings, and refusals to rule and instruct, the defendant alleged exceptions.

The following is so much of the charge of the presiding justice as related to matters stated in the requested instructions:

" No contract for the sale of any goods, wares, or merchandise for thirty dollars or more, shall be valid, unless the purchaser accepts and receives part of the goods, or gives something in earnest to bind the bargain, or in part payment thereof, or some note or memorandum thereof is made and signed by the party to be charged thereby, or by his agent."

" And obviously the clause in controversy here, is whether there was some note or memorandum of the contract alleged to have been made in this case, made and signed by this defendant, the party to be charged. This, you will perceive, is simply a note or memorandum of the contract which is requisite to take the case out of the statute of frauds, as it is called; that is, in order that a party who has entered into a contract of this kind, who has been a party to it by word of mouth, may have a remedy at law to enforce a contract thus made by word of mouth. The defendant claims in the first place, that this is not a valid and sufficient memorandum within the meaning of this statute, because it does not comprise, he says, all of the essential elements and terms of the contract which was, in fact, entered into by these parties. In order that a note or memorandum should be sufficient and valid within the meaning of this statute, it is requisite, gentlemen, that it should contain all of the essential elements and terms of the contract entered into by the parties. And parol evidence, as has been ruled in this case, may be received, that is, the statements of the parties or their witnesses who were present at the time the contract was made, may be received to show that there was some other element in the contract, some other proposition or condition insisted upon by the parties, by the one side or the other, as essential, which was not, in fact, incorporated into this memorandum, and in such a case the memorandum would not be valid and sufficient within the statute of frauds, and the party could not be charged by it. It is claimed here on the part of the defendant, in the first place, that this is not sufficient, because, it is said, there was some discussion, there was an agreement, in fact, it is claimed, between these parties, not appearing in this memorandum in reference to the mode and time of payment."

" Nothing whatever is said, you will have observed from the reading of this memorandum, in reference to the mode or time of payment. The memorandum reads: … Now what is the legal effect of an instrument like that, in reference to the mode and time of payment? Where the parties have failed to make any stipulation in reference to it, the law comes in and says that the party shall be compelled to pay when the goods are delivered. Cash on delivery, in other words, is the concise expression of the rule of law which is presumed to exist where the parties fail to make any written stipulation in regard to it. As the rule has been very well expressed in an approved work, (this, however, is a citation from a prominent authority), I will read to you a few sentences: ‘ The promise to deliver, involved in an agreement of sale, and the promise to pay the purchase money, are mutually dependant.’ "

" ‘ Neither party is bound to perform without contemporaneous performance by the other. Payment of the price is the condition upon which alone the purchaser can require the seller to complete the sale, by delivery of the property. But it is so at the option of the seller. If he proceeds to deliver without insisting upon payment, and without qualifying the act in some way, the condition or mutual dependence is waived or severed…. If, however, the delivery and payment are to be simultaneous, and the goods are delivered in the expectation that the price will be immediately paid, the refusal to make payment will be such a failure on the part of the purchaser to perform the contract as to entitle the vendor to put an end to it and reclaim the goods.’ This explains the rights of the parties under this contract in reference to the payment."

" Now if you find, as matter of fact, under the evidence in this case, that there was an agreement between these parties in reference to the mode and time of payment, essentially and materially different from this presumption of law which I have explained to you, that that was insisted upon by the defendant as an essential element of the contract and made a condition of the contract, then that not appearing in this memorandum, I instruct you as matter of law that the memorandum would not be sufficient, and the defendant could not be charged by it. And you will consider what the evidence was in relation to that point; whether the agreement, if any agreement was made by the minds of these two parties mutually meeting upon any proposition, definitely, in reference to the mode and time of payment, was any different in effect from this presumption of law, namely, cash on delivery, to which I have called your attention. And that does not mean delivery at West Haven, but means delivery according to the defendant's own proposition, ‘ on board vessel at Augusta.’ If, therefore, you should find upon this rule of law that this was a sufficient memorandum in that respect, then the defendant claims still further that there was no consideration for this as a contract. None is expressed in it."

" I instruct you as matter of law, that if you find...