Willis v. Ellis

• Decision Date: 21 November 1910
• Docket Number: 14841
• Citation: 98 Miss. 197,53 So. 498
• Court: Mississippi Supreme Court
• Parties: FLOYD WILLIS v. WILLIAM C. ELLIS

53 So. 498

98 Miss. 197

FLOYD WILLIS v. WILLIAM C. ELLIS

No. 14841

Supreme Court of Mississippi

November 21, 1910

October 1, 1910

FROM the circuit court of Rankin county, HON. C. L. DOBBS, Judge.

Willis appellant, was plaintiff in the court below; Ellis, appellee was defendant there. From a judgment in defendant's favor, sustaining a demurrer to the declaration and dismissing the suit, plaintiff appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed and remanded.

May &amp Sanders, for appellant.

The written memorandum binding the parties is in these words: "Beg to confirm purchase of you to-day B-S cotton, middle and above running receipts, weights guaranteed, at 12c. f. o. b. Florence--September delivery. Kindly confirm same to me." Signed Floyd Willis."

This shows upon its face that plaintiff was bound to take and pay for the one hundred bales of cotton of the specified quality at the stipulated price when the same should be tendered by the defendant.

The defendant in his letter acknowledges and accepts the contract of purchase and sale in the following language:

"Your confirmation of the purchase of . . . bales of cotton received. You make it September delivery when it should be October."

The court will not say that the one surplusage statement contained in appellee's letter is not quoted, but we will hereafter quote and discuss same.

This written communication between these parties clearly shows an antecedent verbal contract which the statute under consideration requires to be evidenced in writing.

The omitted surplusage statement of appellee's letter evidencing his assent to the contract is as follows: "I am willing to put up margin for the faithful performance of contract and require same of you. Cotton be compressed at Mount Olive, and settled by compress weights."

The court will note that appellee himself says by this communication there was and there is a contract. What contract? Contract of sale and purchase; contract by appellant to buy; contract by appellee to sell and deliver? Then is this or not a written memorandum of a contract for the purchase of personal property?

The statute simply requires that the terms of the contract may be made known without resort to oral proof, and nothing more. Let it be said that the minds of the parties did not meet upon the added stipulation of the selling party, that he would require the plaintiff to put up a margin to protect defendant from probable loss. Does that even tend remotely to show to this court that there was not a contract for sale on the one hand and delivery on the other at an agreed price? The very letter itself shows that there was a contract and says, "I am willing to put up margin for the faithful execution of the contract, and I shall require you to do the same." Suppose this appellant had replied to this communication, "I refuse to put up a margin for my faithful performance of this contract but I remit you to your legal remedy." In the event of a breach of the contract could this court say, and would it say there was no contract within the meaning of the statute of frauds, because a condition subsequently imposed by one of the parties had not been accepted by the other for the faithful performance of an understood contract which was evidenced by the writing of the accepting party, and the party sought to be charged under the contract? Or suppose appellant had accepted the proposition and appellee failed and refused to put up his margin--could the contract thereby be defeated by appellee's own act? This court would not entertain such contention for a moment, it would only look to the evidence as to whether there had been an executed contract sufficiently evidenced by written memorandum, and as to modes, methods and manner of its execution or its breach, it would have no concern in considering the question here presented. If it may be said that there was a subsequent condition which might serve to vitiate the contract and this condition was accepted, and agreed to by appellant and the condition was not met by appellant, this would be a matter of defense in a trial on the merits but certainly it could have no place in the consideration of the question here under consideration. In other words, the court will simply treat this statement as surplusage in the light of the announcement of appellee, that there was a contract. Under appellant's letter he was bound to accept and pay for the cotton when tendered by the seller and when this written offer of purchase was accepted in the writing of the seller, he (the seller) thereby became bound to deliver to appellant (or some one designated by him) the quantity of cotton of the quality and price, within the time specified.

The law will not look for a loophole for the escape of a party from the performance of his bounden duty. It will not read this afterthought into the contract as a condition upon which its validity depends, as it manifestly does, if this should be held an element of the contract. How easy it would have been to make it clear that unless the margin was put up defendant would declare all negotiations off, but could the defendant have declared negotiations off because plaintiff refused to put up the margin?

Again it is stated in the declaration that even though these afterthoughts may be construed so as to reach to the terms of the contract they were waived and we respectfully submit that this might be done without in any sense impairing the original contract, especially where the only question is, was there an original contract? or as the statute says, was there some memorandum or note thereof in writing signed by the party to be charged therewith.

In Cummings v. Arnold, 37 Am. Dec. 155 (3 Metcalf) 486, the court speaking through Wilde, Judge, says:

"This rule is laid down by Lord Denman, in Goss v. Nugent, 5 Barn. & Adol. 65, as a well established principle, in these terms: 'After the agreement had been reduced into writing, it is competent to the parties, at any time before breach of it, by a new contract not in writing, either altogether or waive, dissolve, or annul the former agreement, or in any manner to add to, or subtract from, or vary or qualify the terms of it, and thus to make a new contract; which is to be proved, partly by the written agreement, and partly by the subsequent verbal terms engrafted upon what will be thus left of the written agreement.'

"The same principle, substantially, is maintained by numerous cases both in England and in this country; Milton v. Edgeworth, 5 Bro. P. C. (2d Ed.), 313; 1 Mod. 262, 2 Id. 259; 12 Id. 538; 3 T. R. 590; 1 East. 631; 12 Id. 578; 3 Stark. Ec. 1002; Chit. Con. (5th Ed.), 108; 14 Johns. 330; 9 Cow. 115; 1 Johns. Cas. 22; 3 Id. 60; 3 Johns. 531; 12 Wend. 446; 13 Id. 71; 9 Pick. 298; 13 Id. 446; 2 Watts. 456; 5 Cow. 497; 7 Id. 50; 3 Fairf. 441; 4 N.H. 40; 6 Halst. 174; 1 A. K. Marsh. 582."

McWillie & Thompson, for appellee.

There is no reason to consider the statute of frauds further than to call attention to the fact that the price of the cotton being in excess of fifty dollars, the contract for its sale must be evidenced by writing. The plaintiff seems to have recognized this but the letters exhibited with the declaration do not disclose a contract. On the contrary, they show as pointed out in the assignments of the demurrer that there were a number of particulars in respect to which the minds of the parties had not met.

Propositions and counter propositions do not make a contract; before either party is bound, the proposition of one of them must be accepted by the other exactly as proposed; there must be a meeting of minds on the same thing. Insurance Co v. McIntosh, 86 Miss. 236.

In the case of Minneapolis, etc. R. Co. v. Columbus Rolling Mill Co., 119 U.S. 149, the Federal Supreme Court used the following language:

"The rules of law which govern this case are well settled. As no contract is complete without the mutual assent of the parties, an offer to sell imposes no obligation until it is accepted according to its terms. So long as the offer has been neither accepted nor rejected, the negotiation remains open, and imposes no obligation upon either party; the one may decline to accept or the other may withdraw his offer, and either rejection or withdrawal leaves the matter as if no offer had ever been made. A proposal to accept, or an acceptance, upon terms varying from those offered, is a rejection of the offer, and puts and end to the negotiation unless the party who made the original offer renews it or assents to the modification suggested. The other party, having once rejected the offer, cannot afterwards revive it by tendering an acceptance of it."

The law on this subject is stated on most abundant authority to be as follows:

"An acceptance, to be effectual, must be identical with the offer and unconditional. Where a person offers to do a definite thing and another accepts conditionally or introduces a new term into the acceptance his answer is either a mere expression of willingness to treat, or it is a counter proposal, and in neither case is there an agreement." 9 Cyc. 267.

"A letter or other writing containing an offer merely is sufficient as a memorandum only when read in connection with a written acceptance of such offer which does not vary or modify the terms thereof. 27 Am. and Eng. Ency. L. (2d Ed.), p. 874.

There can be no memorandum of a contract until the contract has been made, and until the existence of the contract is apparent we can see no occasion to consider the matter of the sufficiency of the memorandum.

That the minds of the parties had met must be shown by the writings themselves, and the writings relied on in this case not only fail to...