Wood & Brooks Co. v. D. E. Hewitt Lumber Co.
| Decision Date | 18 October 1921 |
| Docket Number | 4297. |
| Citation | 109 S.E. 242,89 W.Va. 254 |
| Parties | WOOD & BROOKS CO. v. D. E. HEWITT LUMBER CO. |
| Court | West Virginia Supreme Court |
Submitted October 4, 1921.
Syllabus by the Court.
An offer in writing to purchase lumber to be manufactured and delivered by the offeree, not signed by him, does not become a contract until he accepts it.
Acceptance to enlarge such an offer into a contract need not be actual it may be inferred from the acts and conduct of the offeree in respect thereof.
A partial and reasonably prompt shipment by the offeree of more than half of the quantity and quality of lumber purchased for delivery, and delivered to and accepted by the offerer, pursuant to the terms and conditions of the offer, amounts to an acceptance by the offeree.
Performance in part of an offer to purchase lumber to be manufactured and delivered by the offeree as required by the offer, when not signed by the offeree, is not sufficient to obviate the inhibition of the statute of frauds (clause 7, § 1, c. 98, Code 1913 [sec. 4171, cl. 7]).
Clause 7, § 1. c. 98, Code 1913 (sec. 4171, cl. 7), does not inhibit an action based on a breach of a contract in writing, not signed by defendant, as therein specified, unless it should appear from the terms and conditions thereof that the contract does not admit of performance within a year from its date.
Where a written offer bearing date in October, to purchase lumber of a prescribed quantity and quality to be manufactured by the offeree in the ensuing winter months for delivery during the following summer, it is not within the inhibition of clause 7 of section 1 of the statute of frauds, chapter 98, Code 1913 (sec. 4171, cl. 7).
Where a contract for the purchase of lumber to be manufactured and delivered by defendant within the time and upon the terms and conditions therein specified is breached by him a few years after the expiration of the time limit, each of the parties thereto acquiescing in the delay during such period, the statutory limitation not applying, and plaintiff, though diligent, was unable to purchase lumber of the kind and character prescribed in the contract within the year the breach occurred, for delivery that year, but could and did purchase it for delivery the next year, the evidence showing the facts to be as stated was competent and justifiable.
Postponement of the completion of a contract concurred and acquiesced in by the parties thereto does not affect the right of the plaintiff to sue for its breach where full performance within a year from its date was possible, and the parties contemplated compliance within that time.
A motion for a continuance, predicated upon an amendment of a declaration to admit proof introduced by plaintiff during the early stages of the trial, properly is rejected where defendant, although objecting to the amendment, proceeds with the trial without showing in what respect, if at all, he is likely to be prejudiced by a continuation of the trial thus begun.
Where plaintiff affirms and defendant denies the existence of a contract binding upon both of them, and each introduces evidence upon that phase of the controversy, consisting of letters and acts and conduct of the parties pertaining thereto, thereby producing a conflict, the question of the existence of such contract is for the jury to determine, and an instruction submitting that question to them for determination is not erroneous when properly prepared.
Error to Circuit Court, Cabell County.
Action by Wood & Brooks Company against D. E. Hewitt Lumber Company. Verdict for plaintiff set aside, and plaintiff brings error. Reversed, verdict reinstated, and judgment entered on the verdict for plaintiff.
L. L Wilson and Geo. S. Wallace, both of Huntington, for plaintiff in error.
Fitzpatrick, Campbell, Brown & Davis, of Huntington, for defendant in error.
The trial court set aside a verdict for plaintiff in an action for damages for a breach of an alleged contract, in the form of an order, for the sale and delivery of lumber, the order being as follows:
Wood & Brooks Co., Ontario St., Buffalo, N.Y.
Oct. 18, 1915.
D. E. Hewitt Lumber Co., Huntington, W.Va.:
Please enter our order for the following:
Ship: N.Y., C. & St. L.
Via: Ship to Black Rock station, Buffalo, N.Y.
500,000 feet 5/4 basswood, white No. 1 common and better, all white one face 80% white the other, suitable for piano keys, subject to our inspection at point of shipment.
Price $39.00 delivered Buffalo 2% cash 10 days from receipt of car. 1916 delivery.
If you cannot deliver as ordered, please advise us immediately.
Wood & Brooks Company,
Per N. R. Luther.
Defendant below and in error neither signed nor formally accepted the order, and for these and other reasons denies liability on the grounds that if the order be a contract it does not on its face require performance within a year from its date, wherefore it is void under section 1, clause 7, chapter 98, Code (sec. 4171). The order considered apart from the correspondence between the parties to the action, and their acts and conduct respecting the transaction, may be subject to the criticism urged against it. While it requires delivery in 1916, the requirement could have been fulfilled after October 18 of that year. But the correspondence throws light upon the intent of the parties as to the order.
It is an offer to purchase basswood timber, and if accepted directly or inferentially it becomes a binding contract to deliver the timber called for, whether signed or not signed by the offeree. If viewed in the light of the subsequent correspondence, the acts of the parties, and the usages and customs of business of that character there is disclosed an intention on the part of each of them to comply with its terms. If the contract could have been performed within a year from its date, it is not within the terms of the statute.
Decisions construing the statute show a tendency to limit its application to contracts which cannot by a reasonable and fair interpretation admit of performance within a year ( Franklin Sugar Co. v. Taylor, 37 Kan. 435, 15 P. 586; cases cited 25 R.C.L. 454), or in which it affirmatively appears that performance cannot be had within that time ( Walker v. Johnson, 96 U.S. 424, 24 L.Ed. 834). Our authorities sustain and strengthen this view:
"An oral contract which may, in any possible event, be fully performed according to its terms within a year, is not within clause 7 of the state of frauds" ( McClanahan v. Otto-Marmet Coal & Mining Co., 74 W.Va. 543, 82 S.E. 752), and, "A verbal contract the terms of which do not expressly provide for performance beyond a year or by fair and reasonable construction contain anything inconsistent with complete performance within that time, is not within the statute of frauds" (Reckley v. Zenn, 74 W.Va. 43, 81 S.E. 565).
As plaintiff's letter of October 18, 1915, that also being the date of the order, contains nothing which indicates that more than a year is to be required for completing the contract, and as A. M. Hewitt, the secretary and treasurer of the defendant company, admits that the quantity of lumber to be furnished was a small order, or, as he says, not more than 6 per cent. of the annual capacity of the defendant's plant, and that the quantity could have been cut and shipped before the summer of 1916, the contract could not be considered as one necessitating more than a year for its performance.
The fact that because of a series of delays, more or less willingly acquiesced in by plaintiff, the deliveries were as a matter of fact continued for more than a year is immaterial; it is the fact that the contract could have been performed within the necessary 12 months that carries the contract without the statute. Ford Lbr. & Mfg. Co. v. Cobb, 138 Ky. 174, 127 S.W. 763; Van Woert v. Albany & S. R. Co., 67 N.Y. 538; Reynick v. Allington & Curtis Mfg. Co., 179 Mich. 630, 146 N.W. 252. Nor does the statute apply to an obligation not in writing to pay money, though payment is not to be made within one year. Rake's Adm'r v. Pope, 7 Ala. 161; Reed v. Gold, 102 Va. 37, 45 S.E. 868; Hodgens v. Shultz, 92 Ill.App. 84; Dant v. Head, 90 Ky. 255, 13 S.W. 1073, 29 Am.St.Rep. 369.
It is urged by defendant that the parties by the order and correspondence manifested an intention to extend performance over a time exceeding the statutory period. Neither the offer nor defendant's letters warrant such construction, as the former, construed in connection with the acts of defendant, rather evince a purpose to consummate the sale within the 12 months. In fact Mr. Hewitt in his letter of September 7, 1916, admits that such was his intention, but this feature we regard as indecisive. "Intention or expectation of the parties is immaterial." McClanahan v. Otto-Marmet Coal & Mining Co., cited. All the cases cited by defendant to sustain its contention seem to involve contracts which on their face have their performance postponed beyond a year. Such contracts are of course within the statute. 3 Minor's Inst. (2d Ed.) 196.
That the sufficiency of the memorandum may be gathered from letters and writings and not from parol evidence is well settled. Rahm v. Klerner & Sons, 99 Va. 10, 37 S.E 292, but it is equally true that an offer in the form of a letter and an acceptance in like form may, if each refers to the same subject, be sufficient to constitute the writing called for by the statute. 2 Page, Contracts, § 1321; Smith, Law of Frauds, p. 566. In defendant's letter last referred to, written some three months after the first of several shipments of timber in June, 1916, pursuant to the order, appears the following clause: "When we took this order for 500,000 feet, we...
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