Turner v. Lorillard Co. , 1897 Ga. LEXIS 123 ( 1897 )

Cobb, Justice.

Turner sued Lorillard Company for damages on account' of an alleged failure on its part to deliver 960 lbs. of snuff at 38§ cts. per lb., wbicb Turner had previously ordered.

On tbe trial of tbe case it appeared from tbe plaintiff’s-testimony that be bad signed a written order for the snuff, wbicb was accepted by Lorillard Company through its agent. Everything was stated in tbe writing to make it-a complete contract, except tbe price, wbicb was left blank' after each item. It was sought to supply this defect by show- - ing dealings between plaintiff and defendant, extending-through a number of years, in wbicb tbe article bargained. for bad always been sold at a stated price per lb., subject to tbe discounts wbicb were stated in tbe writing. Bills-for other goods ordered by tbe plaintiff from tbe defendant were introduced in evidence, and parol evidence was offered to show tbe dealings between these parties, in order to-connect tbe writings and thereby complete tbe contract of ‘ sale. Tbe court held that tbe contract was incomplete,, that tbe price could not be supplied by parol evidence;, and granted a nonsuit in tbe case.

1. Tbe 4th section of tbe statute of frauds provided, that no action should be brought upon certain promises-therein specified, "unless tbe agreement upon wbicb such action shall be brought, or some memorandum or note-thereof, shall be in writing and signed by tbe party to be = charged therewith, or some other person thereunto by him lawfully authorized.” Tbe lYth section of tbe statute' declared that "no contract for tbe sale of goods, wares, and merchandize, for tbe price of ten pounds sterling, or upwards, shall be allowed to be good, except tbe buyer shall' accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized.” It is to be noticed that in order to satisfy the 4th section the “agreement” must be in writing; and to satisfy the 17th section there must be some note or memorandum of the “bargain” in writing. This statute was embraced among those which are described in the act of February 25, 1784 (Cobb’s Dig. p. 721), declaring what statute laws of England were of force in this State, and it remained the law of Georgia in the exact words above quoted until the adoption of the Code of 1861.

In the case of Henderson v. Johnson, 6 Ga. 390, having under consideration the 4th section above quoted, the court says: “By the word agreement mentioned in the statute it must be understood the consideration for the promise, as well as the promise itself, and that if extrinsic parol evidence could be received to show the consideration of the written agreement, the very object of the statute would be defeated.” This was the construction placed upon the section by the English courts in the case of Wain v. Warlters, 5 East, 10. In the case of Hargroves v. Cooke, 15 Ga. 321, the doctrine of Wain v. Warlters is considered and questioned, but that it had been adopted by the court in the case cited supra is recognized. The decision in Wain v. Warlters was made by Lord Ellenborough in 1804, and was therefore not absolutely binding upon this court, and it seems that this was not the recognized construction placed upon the statute by the English courts. In ex parte Gordon, 15 Yes. 286, Lord Eldon said: “Until that case (Wain v. Warlters) was decided some time ago, I had always taken the law to be clear, that if a man agreed in writing to pay the debt of another, it was necessary that the consideration should appear on the face of .the writing.” In tire case of Baker v. Herndon, 17 Ga. 568, the court having under consideration the act of January 19, 1852 (Acts 1851-2, p. 243), which provided that that part of the 4th section of the statute of frauds which relates to special promises to answer for the debt, default, or miscarriage of another person should be so construed that the agreement in writing would be sufficient, although no consideration was expressed therein, it was held that the act referred to was simply declaratory of the law of this State at the time of its passage. The court declined to follow the case of Wain v. Warlters, on the ground that it was decided in the year 1804, and was therefore not binding as authority; and the ruling in the case was to the effect that the proper construction of the 4th section of the statute of frauds was to give to the word “agreement” such a meaning as to make a writing which failed to disclose a consideration sufficient to satisfy the statute. The cases of Henderson v. Johnson and Hargroves v. Cooke, cited supra, were not referred to in the opinion. The word “bargain,” which occurs in the 17th section of the statute, does not seem to have been at any time under consideration by this court. We find, therefore, that up to the time that the Code of 1861 went into effect, the meaning of the word “agreement” in the 4th section of the statute had been considered by this court in three decisions, which were not in harmony with each other. The meaning of the word “bargain” has never been under consideration, and whether it was to be construed as synonymous with “agreement” was never determined. Section 1952 of the Code of 1861 contained a provision that, to make “certain obligations binding on the promiser, the promise must be in writing, signed by the party to be charged therewith, or some person by him lawfully authorized.” The promises enumerated in the section cited were eight in number, the first seven embracing those which were formerly embraced in the 4th section ■of the statute of frauds, and the eighth containing practically what was embraced in. the 17th section of the statute. The purpose of this section of the code was to place •the contracts mentioned in the 4th and 17th sections of the ¡statute of frauds under the same rules. The words "agreement” and "bargain” are entirely eliminated, and the statute declares that the writing shall contain the promise. ‘The effect of this was to declare that a writing which contains the names of the parties, the subject-matter of the ¡agreement, and the promise to be enforced, signed by the party to be charged therewith, or some person by him lawfully authorized, would be sufficient to make the obligation binding, although no consideration for the promise was stated in the writing. The provisions of the Code of 1861, quoted above, have been brought through the various editions of the code, and are now embraced in section 2693 of the Civil Code. It is therefore clear that our statute does not expressly require the consideration to be stated; and this being true, the validity of a contract for the sale of goods, wares, and merchandise, to the amount of $50 or more, is not necessarily affected by a failure to embrace in the writing a fixed price. If the verbal contract is silent as to price, it is not necessary that the price should be stated in the writing; for, "a contract for the sale of a commodity, in which the price is left unwritten, is in law a contract for what the goods shall be reasonably worth.” If, however, the verbal contract entered into between the parties contains an agreement as to the price to be paid, the writing must state the price, as it is then of the essence of the contract; Wood on Statute of Trauds, §351. Where it is apparent from the writing which is relied on to satisfy the statute that it was the intention of the parties to contract specifically as to the price to be paid, or where it appears from extrinsic evidence that such was the intention, and the writing neither designated what the price was to be, nor otherwise stated the actual agreement of the parties with reference to price in such a manner as to show that the parties were contracting with reference to a quantum vale-bat, then such an instrument would not be sufficient to satisfy the requirements of the statute. While the promise only is required to be in writing, still if the promise be to pay a certain amount, then that amount is an essential part of the writing. If the promise in terms, however, be to pay what-the goods are reasonably worth, or if the promise be simply to pay for the goods, from which the law would infer a promise to pay their reasonable worth, then no definite or fixed price need be stated in the writing. In such cases the-statute would be satisfied, and the admission of parol evidence to fix the reasonable worth of the articles which were-the subject-matter of the contract would not be violativeof any rule of law, and would not in any way contravene-the provisions of the statute either in its letter or its spirit. In other words, to satisfy the requirements of the section of' the code which we have adopted in lieu of the statute of' frauds, if an intention be shown, either by the writing' itself or by extrinsic evidence, to contract specifically as to-price, then the price is a part of the promise and must be-embraced in the writing to meet the requirements of the-section. Goodman v. Griffith, 1 H. & N. Ex. Rep. 573; Ashcroft v. Butterworth, 136 Mass. 511; Waterman v. Meggs, 58 Mass. 497; Stone v. Browning, 68 N. Y. 598; James v. Muir, 33 Mich. 223; Acebal v. Levy, 10 Bing. 170; Hanson v. Marsh, 40 Minn. 1; Elsmere v. Kingscote, 3 Bing. 594; Smith v. Stanton, 15 Vt. 685.

2. It is not necessary that the writing provided for in the section quoted shall contain in itself all of the requirements which the statute embraces. The purpose of this law is to prevent the frauds and perjuries incident to the admission of parol testimony., j If the writing, therefore, refer to-any other writing which can be identified completely by this-reference, without the aid of parol evidence, then the two or more writings may constitute a compliance with the statute. s If, however, two writings are relied upon to satisfy the statute aud parol evidence is necessary to connect them with each other, then they would fail as a compliance with the statute. North v. Mendel, 73 Ga. 400. It would therefore follow, that the effort made in this case to supply the defect in the writing relied on, by using other writings' not referred to and which could only be connected with the "writing relied on by the aid of parol testimony, was properly held to be insufficient to comply with the law.

3. If the writing relied on in this case was not sufficient to show that the parties intended to contract specifically as to price, and therefore make such writing insufficient under the statute on account of the absence of such price-from it, the parol evidence which the court admitted made-it absolutely certain that such was the intention of the parties. It clearly appeared from this evidence that under the contract sought to be set up a fixed price was intended to be agreed on, and that it was not the intention of the-parties to leave the price of the article sold to be determined by what it was reasonably worth in the market. Such being' the prior verbal stipulation, the absence of the price from the writing rendered it nugatory. Where the writing' might otherwise be construed to refer the price to a quantum valebat, there seems to be no doubt that parol evidence would be admissible to show a prior verbal intention contrary to such presumption and thereby invalidate-the writing. While parol evidence will never be admitted’ in aid of a party who has an incomplete writing, it will be-admitted to defeat a party who is attempting to impose-upon the court a writing which is not really a complianceAvith the statute. Wood on Stat. Frauds, §391. There-was no error in granting a nonsuit.

Judgment affirmed.

All the Justiees ooneurrmg.