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Salmon Falls Manufacturing Company v. Goddard.

free of truckage, does not prevent the passing of the property, without and before delivery - and without payment.

Phillimore v. Barry, 1 Camp. 513. “If goods are sold to be paid for in thirty days, and if not carried away at the end of that time, warehouse rent to be paid - the property of the goods vests absolutely in the purchaser, and they remain at his risk from the moment of the sale."

King v. Meredith, 2 Camp. 639. “ The fact that the carrier is to be paid by the vendor, will not defeat the vesting of the property."

Wackerbath v. Masson, 3 Camp. 270. “ Where, in a contract for the sale of sugar, there is the following term, free on board a foreign ship,' the seller is not bound to deliver it into the hands of the purchaser, but only to put it on board a foreign ship, which it is the duty of the purchaser to name."

IV. The following instructions, asked for by the plaintiff below, and refused, ought to have been given by the court to the jury.

Instruction third, asked by the plaintiffs. That if the jury are satisfied that Mason & Lawrence were the general agents and factors of the plaintiffs; that the memorandum of September 19, 1850, was executed by the parties whose initials are affixed, and was delivered by defendant to them; and that the invoice or bili of parcels, dated 30th of September, 1850, was delivered by Mason & Lawrence to defendant, in furtherance of said contract, as containing a particular specification and enumeration of the bales and cases mentioned in the memorandum, or contract of September 19th, and was received and retained by him as a true invoice, or bill of parcels, they are to be taken as parts of one contract, and together constitute a memorandum or contract in writing, binding upon both parties, and not void within the statute of frauds.

Eighth instruction asked. If the jury are satisfied thať the two papers exhibited by the plaintiffs, severally dated September 19, and September 30, 1850, relate to the same transactions and things, and manifestly relate to the same contract and transaction, they are to be construed together, and so taken, constitute a sufficient written note or memorandum of the contract, within the statute of frauds.

Whether the two papers, the one dated the 19th, the other the 30th of September, constituted the contract of the parties as finally settled, is a question of fact, exclusively for the determination of the jury — the construction of the papers is partly a matter of fact, and partly matter of law.

Addison on Contracts, 80, 81. “ The contract may be au. thenticated and established through the medium of letters and

Salmon Falls Manufacturing Company v. Goddard. separate writings, provided they refer to each other, and to the same persons and things, and manifestly relate to the same contract and transaction.”

Jackson v. Lowe, 1 Bing. 9. This case recognizes the position that two papers may be regarded from the same context and subject-matter of the papers, as referring to the same contract. It also recognizes the cases cited as to bills of parcels. See also Smith's Mer. Law, 407.

Dobell v. Hutchinson, 5 Neville & Man. 251. “And where, upon such contract, (a paper signed only by the purchaser,) it does not appear upon the face of it, or by reference, of whom the property is purchased, letters, written by persons in the character of vendors, may be connected with the contract, for the purpose of supplying this defect.”

V. The evidence before the jury was competent and sufficient to authorize the jury to find a delivery and acceptance, to and by the defendant.

VI. The defendant is estopped to set up the statute, or to say that no delivery and acceptance has been made.

The points made by the counsel for the defendant in error, were the following.

1. The memorandum in this case is insufficient to satisfy the requirements of the statute of frauds.

“ 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 the purchaser shall accept and receive part of the goods so sold, or shall give something in earnest to bind the bargain, or in part payment, or 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 fully authorized." Rev. Stat. of Mass. ch. 74, . 3. p. 473.

1. The memorandum of September 19, is insufficient, since it cannot be understood without reference to parol evidence.

a. It does not clearly set out or evidence that a sale has been made, or whether a contract for a future sale has been made, or only proposals offered, leading to a sale not yet agreed on.

b. It does not ascertain who is vendor and who is vendee. Addison on Contracts, 80; Bailey v. Ogden, 3 Johns. R. 399; Smith's Mer. Law, 451.

c. The price is uncertain. Addison, 80; Smith's Mer. Law, 451, and the cases in his note; 5 B. & C. 583; 2 B. & C. 627; 1 N. R. 252; Laythrop v. Bryant, 2 Bing. N. C.; 10 Bing. 217, 227, 383, 482.

d. The time of commencement of credit 3 uncertain; what ship, and what December, are uncertain.

e. The name of the plaintiff is not on the contract; nor the

Salmon Falls Manufacturing Company v. Goddard.

name nor initials of any person then his agent. R. M. M. are not the initials of any person then an agent of the plaintiff

. Mason and Lawrence were the agents, and, to avail the plaintiff, he must produce a written contract, containing his name or their names. Higgins v. Senior, 8 Mees. & Wels. 844; Shaw et al. v. Phinney, 13 Met. 456.

To the various insufficiencies aforesaid, and to the general principles on which the statute of frauds is construed: Ide v. Stanton, 15 Vt. 685; Adams v. McMillan, 7 Porter, 73; Champion v. Plummer, 4 B. & P. 252; Elmore v. Kingscote, 5 B. & C. 583; Hoadley v. McLaine, 10 Bing. 482; Acebal v. Levy, 10 Bing. 170; Cooper v. Smith, 11 East, 103; Kain v. Old, 2 B. & C. 205; Parkhurst v. Van Cortlandt, 1 J. C. R. 280; Abeel v. Ratcliffe, 13 Johns. 297; Goss v. Nugent, 5 B. & Ad. 58; Stowell v. Robinson, 3 Bing. N. 8. 928; Harvey v. Grabbam, 5 Ad. & Ellis, 61; Ford v. Yates, 2 Man. & Granger, 549; 2 Kent's Com. 511, 6th ed.; Story on Sales, 269, p. 212; 1 N. H. 157; 3 Greenieaf, 340; 4 Scott's N. R. 504; 23 Wendell, 270, 275; 5 Phil. Evidence, (Cowen's last ed.) 84; 16 Wendell, 28, 32.

2. The bill made out by Rien, dated September 30, cannot be connected with the memorandum of September 19, to form a note within the statute.

d. Neither contains any reference to the other.

b. The only one signed by defendant and on which only he can be charged, (that of September 19,) does not anticipate, provide for, or in any manner adopt, the paper of September 30, written long afterwards; and it cannot be deemed to be amended, completed, or altered by such subsequent unanticipated paper.

Addison on Cont. 80, 81, and cases there cited ; 5 Phil. Ev. (Cowen's last ed.) 84; Boydell v. Drummond, 11 East, 142; 1 St. on Ev. 603; 1 Greenl. on Ev. 9 268; Chitty on Cont. 314-16; Sandiland v. Marsh, 2 B. & A. 680; Coles v. Trecothick, 9 Ves. 250 ; Tawney v. Crowther, 2 Bro. Ch. Cases, 320, n. a; Story on Sales, 272, p. 216.

3. The bill of sale of September 30th is in itself insufficient as a memorandum, as not signed by the defendant, or by any. one authorized by him to sign it for him.

A. Neither Mason nor Rien had any express authority from the defendant to sign for him, and their position gave them no implied authority to do so.

Commission merchants stand upon a different footing from brokers and auctioneers; being agents for one party only, they can only bind their principals. 13 Met. 456; Sewall v. Fitch, 8 Cow. 215; Dixon v. Bromfield, 2 Chit. Rep. 205;

Salmon Falls Manufacturing Company v. Goddard.

Lean v.

Wright v. Dunnell, 2 Camp. 203; Fairbrother v. Simmons, 5 B. & A. 333; 1 R. & M. 325, Raynard v. Linthorn; Smith's Merc. Law, 455, and cases cited; 1 Bl. 599; 1 Esp. 105; 7 E. 569.

B. There was no subsequent ratification by the defendant of the act of Rien.

a. The language of the defendant is perfectly consistent with the idea that he had a right to insist upon having the goods, as the bill sufficiently bound the plaintiff, and is therefore no necessary ratification.

6. The silence of defendant was no ratification. Rien was an officious intermeddler in the business, (if he had assumed to act as agent for defendant,) so far as defendant is concerned; and it is holden by some, though denied by others, that in such case, even after notice from such person of his act, silence is no ratification. 1 Livermore, Agency, 50; Story on Agency, 251; and note.

But defendant had no notice from Rien that he had assumed to act for him, and so silence would not amount to ratification, even under the worst view of the law for the defendant. Mc

Dunn, 1 M. & P. 761; and all cases hold that, to a ratification of an unauthorized agency, knowledge that there has been an assumption of agency for the very party ratifying is indispensable.

c. There was no express ratification of Rien's act by defendant.

The view which the court took at the nisi hearing of the case of Batters v. Sellers, 5 H. & J. 117, seems impregnable. See, too, 5 Phil. Ev. (Cowen's last ed. 358,) Hawkins v. Chace, 19 Pick. 502; Graham v. Musson, 5 Bing. N. C. 603.

3. Even if the memorandum of the bargain of September 19 was sufficient within the statute, yet unless there was a subsequent delivery to, and acceptance of, goods by the defendant, the property, under the special circumstances, did not pass, and remained the plaintiff's at the time of the fire.

a. The memorandum leaves it doubtful, whether a sale in presenti, or a contract, or proposals towards a contract, for a future sale, were intended. The probable, if not necessary inference, from the face of the paper, is, that no present sale is made.

1. No specific goods are designated.

2. An election to reject or deny any contract as to part, at the mere pleasure of the purchaser, is reserved.

3. Credit is not to commence until a future uncertain event. 4. Delivery is thereafter to be made. a. The goods in fact were not at the time selected, or set

Salmon Falls Manufacturing Company v. Goddard

apart; and of course no property therein could or did

pass;

this aids also the inference from the face of the paper, that no present sale was intended.

c. When plaintiff subsequently selected them, the property would not pass, certainly under such a contract, until defendant accepted them, and thus adopted the particular designation ; and this he never did. In Rhode v. Thwaites, (6 B. & C. 388,) there was such actual acceptance by the buyer.

e. The plaintiff was permitted to prove that he had a right to a note before delivery; and he would have a lien for this; which affords some ground of additional argument to show that the property did not pass.

II. There was no delivery by the plaintiff, nor acceptance by the defendant, sufficient to take the case out of the operation of the statute requiring a demand.

Mr. Justice NELSON delivered the opinion of the court.

This is a writ of error to the Circuit Court of the United States for the District of Massachusetts.

The suit was brought by the plaintiffs in the court below, to recover the price of three hundred bales of brown, and of one hundred cases of blue drills, which they had previously sold to the defendant.

The contract for the purcnase was made with the house of Mason & Lawrence, agents of the plaintiffs, in Boston, on the 19th September, 1850, and a memorandum of the same signed by the parties. A bill of parcels was made out under date of 30th September, stating the purchase of the goods by the defendant, carrying out prices, and footing up the amount at $18,565.03; also the terms of payment-note at twelve months, payable to the treasurer of the plaintiffs. This was forwarded to the defendant on the 11th October, and in pursuance of an order from him, the three hundred bales were sent from their establishment at Salmon Falls by the railroad, and arrived at the depot in Boston on the 30th October, of which notice was given to the defendant on the same day, and a delivery tendered. He requested that the goods should not be sent to his warehouse, of place of delivery, for the reason, as subsequently stated by his clerk, there was no room for storage. The agents of the plaintiffs the next day renewed the tender of delivery by letter, adding that the goods remained at the depot at his risk, and subject to storage, to which no answer was returned. On the night of the 4th November, the railroad depot was consumed by fire, and with it the three hundred bales of the goods in question. The price was to be paid by a note at twelve months, which the defendant refused to give, upon which refusal this action was brought.

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