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Salmon Falls Manufacturing Company v. Goddard.

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The court below, at the trial, held that the written memorandum made at the time of entering into the contract between the agents of the plaintiffs and the defendant, was not sufficient to take the case out of the statute of frauds, and as there was no acceptance of the goods, the plaintiffs could not recover.

As we differ with the learned Judge who tried the cause, as to the sufficiency of the written memorandum, the question upon the statute is the only one that it will be material to notice. The memorandum is as follows:

“ Sept. 19;— W. W. Goddard, 12 mos.
300 bales S. F. drills,

74
100 cases blue do.
“ Credit to commence when ship sails :

R. M. M.

not after Dec. 1st-delivered free of

charge for truckage.
“ The blues, if color satisfactory to pur-
chasers.

w. w. G." The statute of Massachusetts on this subject is substantially the same as that of 29 Car. II. ch. 3, § 17, and declares that no contract for the sale of goods, &c., shall be valid, &c., “ 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.”

The word " bargain," in the statute, means the terms upon which the respective parties contract; and in the sale of goods, the terms of the bargain must be specified in the note or memorandum, and stated with reasonable certainty, so that they can be understood from the writing itself, without having recourse to parol proof; for, unless the essential terms of the sale can be ·ascertained from the writing itself, or by a reference contained in it to something else, the memorandum is not a compliance with the statute.

This brief note of the contract, however, like all other meicantile.contracts, is subject to explanation by reference to the usage and custom of the trade, with a view to get at the true meaning of the parties, as each is presumed to have contracted in reference to them. And although specific and express provisions will control the usage, and exclude any such explanation, yet, if the terms are technical, or equivocal on the face of the instrument, or made so by reference to extraneous circumstances, parol evidence of the usage and practice in the trade, is admissible to explain the meaning. 2 Kent C. 556, and n. 3; Id. 260, and n.; Long on Sales, 197, ed. 1839, 1 Gale & Davis. 52.

Extraneous evidence is also admissible to show that a person whose name is affixed to the contract, acted only as an agent, thereby enabling the principal either to sue or be sued in his

Salmon Falls Manufacturing Company v. Goddard. own name; and this, though it purported on its face to have been made by the agent himself, and the principal not named. Higgins v. Senior, 8 M. & Wels. 834; Trueman v. Loder, 11 Ad. & Ell. 589. Lord Denman observed, in the latter case, " that parol evidence is always necessary to show that the party sued is the party making the contract, and bound by it; whether he does so in his own name, or in that of another, or in a feigned name, and whether the contract be signed by his own hand (or that of an agent) are inquiries not different in their nature from the question, Who is the person who has just ordered goods in a shop? If he is sued for the price, and his identity made out, the contract is not varied by appearing to have been made by him in a name not his own."

So the signature of one of the parties is a sufficient signing to charge the firm. Soames v. Spencer, 1 D. & R. 32; Long on Sales, 58.

It has also been held, in the case of a sold note which expressed “ eighteen pockets of hops, at 100s.," that parol evidence was admissible to show that the 100s. meant the price per cwt. Spicer v. Cooper, 1 Gale & D. 52; 5 Jurist, 1036.

The memorandum in that case was as follows: u Sold to Waite Spicer, of S. Walden, 18 pos. Kent hops, as under July 23, 1840; 10 pos. Barlow East Kent, 1839 ; 8 pos. Springall Goodhurst Kent, 1839, 100s. Delivered, John COOPER."

Evidence was admitted on the trial to prove that the 100s. was understood in the trade to refer to the price per cwt., and the ruling approved by the King's Bench. Lord Denman put a case to the counsel in the argument to illustrate his view, that bears upon the case before us. Suppose, he said, the contract had been for ten butts of beer, at one shilling, the ordinary price of a gallon--and intimated that the meaning could hardly be mistaken.

Now, within the principles above stated, we are of opinion that the memorandum in question was a sufficient compliance with the statute. It was competent to show, by paral proof, that Mason signed for the firm of Mason & Lawrence, and that the house was acting as agents for the plaintiffs, a company en gaged in manufacturing the goods which were the subject of the sale; and also to show, that the figures 7 and 8:, set opposite the three hundred bales and one hundred cases of goods, meant seven and a quarter cents, and eight and three quarter cents per yard.

The memorandum, therefore, contains the names of the sellers, and of the buyer- the commodity and the price—also, the time of credit, and conditions of the delivery; and, in the absence of any specified time or place of delivery, the law will supply the

Salmon Falls Manufacturing Company v. Goddard.

omission, namely, a reasonable time after the goods are called for, and usual place of business of the purchaser, or his customary place for the delivery of goods of this description.

In respect to the giving of the note, which was to run during the period of the credit, it appears to be the uniform custom of the house of Mason & Lawrence, to take notes for goods sold of this description. The defendant was one of their custoiners, and knew this usage; and it is a presumption of law, therefore, that the purchase was made with reference to it, there being no stipulation to the contrary in the contract of the parties.

We are also of opinion, even admitting that there might be some obscurity in the terms of the memorandum, and intrinsic difficulty in a proper understanding of them, that it would be competent, under the circumstances of the case, to refer to the bill of parcels delivered, for the purpose of explanation. We do not say that it would be a note in writing, of itself sufficient to bind the defendant within the statute; though it might be to bind the plaintiff.

It was a bill of sale made out by the seller, and contained his understanding of the terms and meaning of the contract; and having been received by the buyer, and acquiesced in, (for the order to have the goods forwarded was given after it was received, the natural inference would seem to be, that the interpretation given was according to the understanding of both parties. It is not necessary to say that this would be the conclusion, if the bill differed, materially from the written contract; that might present a different question; but we think it is so connected with, and naturally resulting from, the transaction, that it may be properly referred to for the purpose of explaining any ambiguity or abbreviations, so common in these brief notes of mercantile contracts.

A printed bill of parcels, delivered by the seller, may be a sufficient memorandum within the statute to bind him, especially, if subsequently recognized by a letter to the buyer. 2 B. & P. 238 D.; 3 Esp. 180. And generally the contract may be col. lected from several distinet papers taken together, as forming parts of an entire transaction, if they are connected by express reference from the one to the others. 3 Ad. & Ell. 355; 9 B. & Cr. 561 ; 2 Id. 945; 3 Taunt. 169; 6 Cow.445; 2 M. & Wels. 660; Long on Sales, 55, and cases.

In the case before us, the bill of parcels is not only connected with the contract of sale, which has been signed by both parties, but was made out and delivered in the course of the fulfilment of it; has been acquiesced in by the buyer, and the goods or. dered to be delivered after it was received. It is not a memorandum sufficient to bind him, because his name is not affixed

Salmon Falls Manufacturing Company v. Goddard.

to it by his authority; but if he had subsequently recognized it by letter to the sellers, it might have been sufficient. 2 B. & P. 238; 2 M. & Wels. 653; 3 Taunt. 169.

But although we admit, if it was necessary for the plaintiffs to rely upon the bill as the note or memorandum within the statute, they must have failed, we think it competent, within the principle of the cases on the subject, from its connection with, and relation to the contract, to refer to it as explanatory of any obscurity or indefiniteness of its terms, for the purpose of removing the ambiguity.

Take, for example, as an instance, the objection that the price is uncertain, the figures 7; and 8;, opposite the 300 bales and 100 cases of drills, given without any mark to denote what is intended by them.

The bill of parcels carries out these figures as so many cents per yard, and the aggregate amount footed up; and after it is received by the defendant, and with a knowledge of this explanation, he orders the goods to be forwarded.

We cannot doubt but that the bill, under such circumstances, affords competent evidence of the meaning to be given to this part of the written memorandum. And so, in respect to any other indefinite or abbreviated item to be found in this brief note of a mercantile contract.

For these reasons, we are of opinion, that the judgment of the court below, must be reversed, and the proceedings remitted, with directions to award a venire de novo.

Mr. Justice CATRON, Mr. Justice DANIEL, and Mr. Justice CURTIS, dissented.

DANIEL, Justice, dissenting.

Upon the point made in this case, on the Statute of Frauds, 1 entirely concur in the exposition of the law just announced by the court. With respect, however, to the proceedings ordered by this court to be taken in this case in the Circuit Court, I am constrained to dissent from the decision of iny brethren. My opinion is, that under the 2d section of the 3d article of the Constitution, the courts of the United States could not take cognizance of the controversy between these parties; and that therefore the proper direction to the Circuit Court would have been to dismiss this suit for want of jurisdiction. My reasons, for the conclusion here expressed, having been given in detail in the case of Rundle et al. v. The Delaware and Raritan Canal Company, during the present term, it is unnecessary to repeat them on this occasion. VOL. XIV.

39

Salmon Falls Manufacturing Company v. Goddard.

R. M. M.

W. VV. G.

Mr. Justice CURTIS.

I have the misfortune to differ from the majority of my brethren, in this case, and, as the question is one which enters into the daily business of merchants, and at the same time involves the construction of a statute of the Commonwealth of Massachusetts, I think it proper to state, briefly, the grounds on which I rest my opinion.

The first question is, whether the writing of the 19th of September is a sufficient memorandum within the 3d section of the 74th chapter of the Revised Statutes of Massachusetts. The writing is in these words and figures. “ Sept. 19. W. W. Goddard, 12 mos. 300 bales S. F. drills

71, 100 cases blue

8. Cr. to commence when ship sails; nọt after Dec'r 1st; delivered free of charge for truckage.

The blues, if color is satisfactory to purchaser.”

Does this writing show, upon its face, and without resorting to extraneous evidence, that W. W. Goddard was the purchaser of these goods ? I think not. Certainly it does not so state in terms, nor can I perceive how the fact can be collected from the paper, by any certain intendment. If it be assumed that a sale was made, and that Goddard was a party to the transaction, what is there, on the face of the paper, to show whether God. dard sold or bought ? Extraneous evidence that he was the seller, would be just as consistent with this writing, as extraneous evidence that he was the purchaser. Suppose the fact had been, that Mason was the purchaser, and that the writing might be explained by evidence of that fact; it would then be read that Goddard sold to Mason, on twelve months' credit; and this evidence would be consistent with every thing which the paper contains, because the paper is wholly silent as to the fact whether he was the seller or the purchaser. In Bailey et al. v. Ogden, (3 Johns. Rep. 398,) an action for not accepting sugars, the memorandum was: “14 December.

J. Ogden & Co.--Bailey & Bogart.
Brown, 12,

60 and 90 days. White, 16. Debenture part pay." Mr. Justice Kent, who deliverea ihe opinion of the court, enumerating the objections to the memorandum, says, ne person can ascertain, from this memorandum, which of the parties was selier, and which buyer; and I think it would be difficult to

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