Wright v. Seattle Grocery Co.

• Decision Date: 21 January 1919
• Docket Number: 14677.
• Citation: 177 P. 818,105 Wash. 383
• Court: Washington Supreme Court
• Parties: WRIGHT v. SEATTLE GROCERY CO.

177 P. 818

105 Wash. 383

WRIGHT v. SEATTLE GROCERY CO.

No. 14677.

Supreme Court of Washington, En Banc.

January 21, 1919

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Action by Chauncey Wright against the Seattle Grocery Company. From judgment for plaintiff, defendant appeals. Reversed, and cause remanded with instructions to enter judgment as indicated.

See also, 172 P. 345.

Tolman Mackintosh, Holcomb, and Main, JJ., dissenting.

Elias A. Wright and Sam A. Wright, both of Seattle, for appellant.

Leopold M. Stern, of Seattle, for respondent.

FULLERTON J.

The sales agent of the appellant sold to the respondent a carload of flour, and delivered to him a copy of a memorandum of the sale in the following form:

'Seattle Grocery Company (Incorporated) Corner Western Avenue and Columbia Street. Phone Main 842. Seattle, Wash April 6, 1917. Sold to Chauncey Wright, L. C. Smith Bldg., Seattle, Wash., Coffee, Spices, 'Halcyon' Food Products, 1 car Gold Medal flour, $2,790.46.'

The memorandum of the sale was a printed blank form on which was entered in writing at the time of sale the date, name, and address of purchaser, and the statement of goods sold, with the agreed price. The appellant corporation failed to carry out the contract, and the respondent brought an action for its breach, demanding damages in the sum of $1,859.54, being the difference between the agreed price and the sum of $4,650, which was alleged to be the market value of the flour in Seattle, the place of delivery, at the time of the breach. On a trial before a jury, a verdict was returned against the appellant in the sum of $1,472.04, and from the judgment entered thereon this appeal is prosecuted.

The record discloses the death of the respondent pending the appeal and the substitution of the executrix in his place and stead.

The first assignment of error necessary to be noticed is the assignment that the court erred in overruling the demurrer interposed to the complaint. In his complaint the respondent alleged that the contract of sale was 'partly oral and partly written,' and it is contended that this is fatal to the complaint, since under the statute of frauds the contract must be in writing, and that a contract partly oral and partly written is in law an oral contract. But we cannot think the objection tenable. In the first place, the contention misconceives the effect of the statute. The requirement is, not that contracts of this sort must be in writing, but is that some note or memorandum in writing of the bargain be made and signed by the party to be charged. If therefore the note or memorandum shows the bargain, it is sufficient even though all of the details of the agreement be not stated therein. But further than this, the defect, if defect it is, is one capable of amendment. The cause was tried as if upon a sufficient complaint, in which neither party was denied the right to introduce evidence because of the supposed defect. It would therefore be an idle ceremony to reverse the cause and send it back for a new trial because of this defect in the complaint, even though we considered the objection well taken, since to do so would be but to allow an amendment to the complaint and a retrial upon the same evidence. Moreover, to do so would be to disregard that admonition of the statute requiring us to hear causes upon their merits, disregarding all technicalities, and to consider all amendments as made which could have been made. Rem. Code, § 1752.

The principal contention of the appellant is that the memorandum was not sufficient under our statute of frauds. The applicable provision of the statute is as follows:

'No contract for the sale of any goods, wares, or merchandise, for the price of fifty dollars or more, shall be good and valid, * * * unless some note or memorandum in writing of the bargain be made and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized.' Rem. Code, § 5290.

The real contract between the parties was an oral one, evidenced by the memorandum which we have set out. This memorandum was not signed by the respondent, and under the statute, according to the unquestioned holding of the authorities, the contract was unenforceable against the respondent. The appellant seizes upon this fact as a basis for arguing the lack of mutuality in the contract, and contends that, if it is unenforceable by the appellant, it must likewise be unenforceable by the respondent. While there is a conflict in the decisions of the courts upon this point, it is settled by the great weight of authority that a written memorandum of a sale of goods is sufficient as against the defendant in a suit, though it be signed by him alone. This seems to be rested on the theory that the statute is in the nature of a rule of evidence, necessitating written in place of parol proof. Under other provisions of the statute, the contract would be enforceable in the absence of any writing, if it had been partially performed by either party or anything done to bind the bargain. The term in the statute, 'the party to be charged,' is construed by the courts as being used with reference to the contracting party whom it is sought to hold liable in the courts, and as authorizing action by a purchaser who did not sign against a seller who did sign the memorandum. Knapp v. Beach, 52 Ind.App. 573, 101 N.E. 37; Justice v. Lang, 42 N.Y. 494, 1 Am. Rep. 576; Morrison v. Browne, 191 Mass. 65, 77 N.E. 527; Bowers v. Whitney, 88 Minn. 168, 92 N.W. 540; Linton v. Williams, 25 Ga. 391; Williams v. Robinson, 73 Me. 186, 40 Am. Rep. 352.

While this court has not heretofore had occasion to pass expressly upon the point in connection with the sale of goods, it has declared in the case of Western Timber Co. v. Kalama River Lumber Co., 42 Wash. 620, 85 P. 338, 6 L. R. A. (N. S.) 397, 114 Am. St. Rep. 137, 7 Ann. Cas. 667, that a memorandum of sale of lands could be specifically enforced though not signed by the purchaser; the terms of sale signed by the seller being sufficient to take it out of the statute of frauds. To the same effect are Tingley v. Bellingham Bay Boom Co., 5 Wash. 644, 32 P. 737, 33 P. 1055, and Anderson v. Wallace Lumber, etc., Co., 30 Wash. 147, 70 P. 247.

A further contention of the appellant is that there was no memorandum of sale signed by itself upon which it could be charged. It is true no actual written signature to the memorandum was made by the appellant or by its authorized agent; but the record shows that its authorized agent negotiated the sale with respondent, and entered the terms of the sale on a blank form used by appellant in dealing with customers, which contained at its top the name of the appellant as the acting party. We held in Anderson v. Wallace Lumber, etc., Co., 30 Wash. 147, 70 P. 247, and Tingley v. Bellingham, etc., Co., 5 Wash. 644, 32 P. 737, 33 P. 1055, that a contract may be signed, within the meaning of the statute, no matter in what part thereof the name of the party to be charged may appear. Under these authorities, the use by the party to be charged of his witten or stamped name to indicate his joinder in the contract set forth is a sufficient signature under the statute of frauds. See, also, Dinuba, etc., Co. v. J. M. Anderson, etc., Co., 193 Mo.App. 236, 182 S.W. 1036; Berryman v. Childs, 98 Neb. 450, 153 N.W. 486, Ann. Cas. 1918B, 1029; Drury v. Young, 58 Md. 546, 42 Am. Rep. 343.

The appellant also contends that the bill of sale does not set forth all the terms of the bargain made, but that respondent was compelled to resort to parol evidence to establish them, and hence the memorandum was not sufficient under the statute. This court has lately had this question under consideration in the case of Nut House v. Pacific Oil Mills, 172 P. 841:

'The appellant claims that the orders taken--five in number--do not meet the requirements of this statute. While the orders are not formal contracts, the statute does not require that they should be. It is true that the orders, or some of them, are somewhat informal; but each of them contains the essential elements to satisfy the statute. The thing sold is described by words or abbreviations or by reference to sample. The price to be paid is mentioned and the terms of payment; also, the party selling and the party purchasing; and each order is signed by the party to be charged. It is true that in one or more of the orders taken there were abbreviations the meaning of which it was necessary to explain upon the trial by oral testimony, but this was not proving an essential term of the contract not covered by the writing. No authority has been called to our attention which holds that, where it is necessary to explain an abbreviation by oral testimony, the contract necessarily fails to meet the requirements of the statute. We think the orders substantially complied with the requirements of the statute. The substantial effect of a holding that these orders were void would be to require that a contract, to satisfy the statute, should be a formal one. This would be, not only a serious interference with the

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