Salmon Falls Manufacturing Company v. Goddard/Opinion of the Court

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Massachusetts.

The facts are set forth in the opinion of the court, and also the rulings of the Circuit Court. The bill of exceptions extended over thirty pages of the printed record.

It was argued by Mr. Goodrich, for the plaintiff in error, and by Mr. Johnson and Mr. Davis, with whom was Mr. Choate, for the defendant in error.

The points made by the counsel for the plaintiff in error, were the following:

I. The evidence before the jury was competent and sufficient to authorize them to find that the bill of parcels had been adopted, recognized, and acted upon by the defendant, as the contract between himself and the plaintiffs.

II. The bill of parcels constitutes a contract known as a bargain and sale, by force of which the title to the property passed, without delivery, without payment of the price. It purports on its face a sale in presenti.

III. The paper signed by the defendant, dated 19th September, (Record, p. 11,) is a sufficient compliance with the statute of frauds, and the first position taken, and the first instruction asked in the court below, should have been sustained.

Addison on Contracts, 80. 'It is not necessary that all the particulars of the contract should appear upon the face of the written memorandum. Any note, acknowledging the fact of the sale, mentioning the name of the vendor and the thing sold, and signed by the purchaser or his agent, will take the case out of the statute.'

Penniman v. Hartshorn, 13 Mass. 87; Egerton v. Matthews, 6 East, 307, as to the description of the goods being sufficiently certain.

Even if it should be considered essential that the particular bales and cases should be selected, this was done, and thereupon the writing attached. See Record, p. 13, letters. The first letter set apart No. 8180 to 8679. The 100 cases blue drills were set apart at the counting room of Mason & Lawrence, on 11th October.

The second letter called for No. 8480 to 8679-200 bales, thus leaving set apart, 300 bales from No. 8180 to 8479.

In considering this position and instruction, the plaintiffs relied upon their usage, to require notes upon all sales made upon credit, which was known to Goddard.

This usage was competent, as constituting a part of the contract, as one of the incidents of the credit which was given.

Hutton v. Warren, 1 Mees. & Wels. 466; Grant v. Maddox, 15 Id. 737; Syers v. Jonas, 2 Wels. Hurls. & Gor. 111. In an action for the price of tobacco sold, evidence is admissible to show that by the established usage of the tobacco trade, all sales are by sample, although not so expressed in the bought and sold notes. Tibbets v. Sumner, 19 Pick. 166.

The contract is certain as to the parties, as to the number of bales, the price per yard, so that the amount of the purchase may be computed.

It is well established that a signature, by initials, is good; but the fact, whose initials they are, must be settled by the jury, upon proof. So, also, it is submitted, that it is the province of the jury to determine the character in which the parties signed. It was for them to say whether Goddard, by signing his initials and writing underneath the provision as to credit, and that the contract as to the blues might be abandoned, if color not satisfactory to the purchaser, is or is not sufficient, and was designed by the defendant to designate himself as the purchaser. That he did so design, is apparent, also, from the fact that his name is written at the top of the paper, prior to that of any other person.

In determining this question, it is competent for the jury to look at the situation of the parties and of the property, in aid and in explanation of the paper, for the purpose of attaching or locating the paper.

Whether a party signed as a witness, or as a party, is often determined from the location of his signature upon the paper.

Higgins v. Senior, 8 Mees. & Wels. 844. It may be shown that a party, whose name does not appear upon the paper, is bound as a contracting party, where an agent signs his own name instead of that of the principal.

Why not show, upon the same principle, or infer from the paper, the character and purpose in and for which a party signs?

The provision in this paper, that the goods are to be delivered 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 bill 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 that 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 authenticated and established through the medium of letters and 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.

I. 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 is uncertain; what ship, and what December, are uncertain.

e. The name of the plaintiff is not on the contract; nor the 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. S. 928; Harvey v. Grabham, 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 Greenleaf, 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.

a. 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. § 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; 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.

b. 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. McLean v. 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 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 purchase 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, or 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.

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.

'Credit to commence when ship sails: not after Dec. 1st     delivered free of charge for truckage.

'The blues, if color satisfactory to purchasers.

R. M. M.

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 mercantile 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 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: '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 parol proof, that Mason signed for the firm of Mason & Lawrence, and that the house was acting as agents for the plaintiffs, a company engaged in manufacturing the goods which were the subject of the sale; and also to show, that the figures 7 1/4 and 8 3/4, 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 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 customers, 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 collected from several distinct 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 ordered to be delivered after it was received. It is not a memorandum sufficient to bind him, because his name is not affixed 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 1/4 and 8 3/4, 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.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Massachusetts, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to award a venire facias de novo.