Williams v. Bacon , 68 Mass. 387 ( 1854 )

Merrick, J.

The presiding judge ruled at the trial that the evidence adduced by the plaintiff was insufficient to enable him to maintain this action, and directed a verdict, which was thereupon returned, for the defendants. To determine whether that ruling was correct, it is necessary to keep in view the distinction between evidence of a contract and evidence of a compliance with the provisions of the statute of frauds in relation to it; for the defendants, in attempting to sustain the ruling, do not now deny that the testimony of Hale Remington afforded adequate proof of a verbal contract between the parties, whereby the plaintiff agreed to purchase, and the defendants to sell the quantity and various kinds of coal mentioned in the declaration; but they insist that no note or memorandum in writing was ever made of it and signed by themselves or by any authorized person in their behalf. And they contend that the letter of Remington of the 11th of July 1853, which is relied on by the plaintiff as a sufficient compliance with the provisions of the statute to give validity to the contract and make it obligatory upon them, cannot properly be allowed to have that effect, first, because it was no part of the res gestos, and constituted no part of the negotiation between the parties, and is only a narrative of a past transaction; and secondly, because it does not purport on its face to be, and is not in fact, signed by them or by any duly authorized person in their behalf.

A note or memorandum in writing of an oral contract is essentially different from a written contract. The latter supersedes and takes the place of all preceding negotiations, and is conclusive evidence of the stipulations and bargain between the parties. But the former may be made at any time after the parties have entered into engagements with each other by a verbal agreement. Sievewright v. Archibald, 17 Ad. & El. N. R. 107, 114. In the very nature of such transactions, the memorandum must be posterior in point of time to the contract of which it is the record. And it has accordingly often been determined, that documents and letters, though they were all written subsequent to the conclusion of the bargain, may be coupled together, if it appear that they all had relation to it, for the purpose of showing that a written memorandum of it was duly made and signed by the party to be charged. Allen v. Bennet, 3 Taunt. 169.

The evidence produced upon the trial in the present case had a direct tendency to prove that a verbal contract for the sale of coal, as is alleged in the declaration, was made by and between the parties at Taunton, on the 3d of June 1853. In that negotiation, Remington acted for the defendants. He was their duly constituted agent, and was authorized in that capacity to sell, or to contract for the sale of coal on their account. Such an agency implied the right to do whatever act was necessary to make the engagements he entered into, in the exercise of the •power it conferred upon him, binding and obligatory upon his principals. He was therefore legally competent, and it was lawful for him, after having verbally agreed with the plaintiff, for the defendants, to sell him certain quantities of coal at stipulated prices, to make a written note or memorandum of the bargain, and sign it for them and in their behalf. And this he might lawfully do at any time before his authority to sell, or to complete a contract of sale, was revoked or annulled. On the 11th of July he was asked by the plaintiff for “ a statement of our coal engagement ; ” to which request he replied in his letter of that date. A jury would be well warranted in inferring from the evidence in the case — and indeed we think they could justly arrive at no other conclusion — that the request and answer both referred to the bargain which had been previously made by them on the 3d of June, at Taunton. If so, the letter was a full and complete memorandum of the bargain. It states explicitly the agreement to sell, the price, quantities and description of the different kinds of coal sold, the place where it was to be delivered, and the time when the payment for. it was to be made.

This memorandum therefore, containing all the elements of a complete bargain, was sufficient to meet the requirements of the statute, if it was signed in behalf of the defendants by a person thereunto duly authorized. The letter was signed by Remington ; and he does not name his principals, or express, in terms, that in doing it he acts as their agent. But, interpreting certain expressions contained in it in the light afforded by a knowledge of the situation of the parties, there can be no doubt that he wrote it, not for himself, but for them. There is nothing in the case having any tendency to show that he ever made any such bargain on his own account, or that he ever had any such coal of his own to sell; but it is certain that he did make such a bargain with the plaintiff on behalf of the defendants, and on the same day communicated to the defendants the fact that he had made it. They resided at Philadelphia, and the letter obviously refers to them, when the plaintiff is told in it that the coal is ready for delivery at that place; that “ you will forward vessels as soon as you please, and we will put the coal on board. Our people will use all exertions to procure vessels at going rates of freight, and I presume they will succeed. If not. you must send vessels for it.” These allusions could be to no persons but the defendants, who were thus distinctly pointed out as the party to be charged with the obligation of performing the contract referred to.

The signature of a memorandum which is a sufficient compli anee with the provisions of the statute may be made by an agent, though he write his own name instead of that of his principal, if it was his intention that the latter should be bound by it. 2 Parsons on Con. 291. Trueman v. Loder, 11 Ad. & El. 589, and 3 P. & Dav. 267. White v. Proctor, 4 Taunt. 209.

There is a very slight variance, in the statement of the terms of the contract, between the letter of the 11th of July and the memorandum which Remington caused to be made of it on his book at Fall River. And in his letter of the 3d of June to the defendants, he omits to mention the one hundred tons of lump coal which was embraced in it. But in reference to the question arising upon the bill of exceptions, these variances are unimportant. The plaintiff made a verbal agreement with the defendants for the purchase of a quantity of coal. He subsequently called upon their agent for “ a statement of our coal engagement; ” and the letter of the 11th of July was written in answer to this application. It was sent, and was received, as an authentic statement of the terms and provisions of the previous bargain. It is immaterial that it does not, in all particulars, correspond with the items contained "in the communication of Remington to his principals under date of the 3d of June, or in the memorandum which he caused to be placed on his own book at Fall River. These latter are of importance only as they serve to corroborate the other evidence in the case adduced to prove that a verbal contract had in fact been previously made by the parties. But having been written without the knowledge of the plaintiff, he eould not have recognized what was thus stated to be true, or assented to it as correct, and of course is not to be bound by it. On the other hand, it cannot be doubted that, in preparing and furnishing to the purchaser, at his request, a written note of the verbal contract, the agent who made it would, with a vigilant and proper regard for the rights of his principals, be careful to fall into no error in his representations. The letter which he wrote to the plaintiff professed, and purported upon its face, to recite with precision and accuracy the terms of the contract, and was received and accepted, and has ever since been relied upon, by him as a true and correct statement of it. Both parties having thus affirmed it and assented to its correctness, the memorandum contained in the letter of the 11th of July must be considered as conclusive evidence of the previous verbal bargain.

Exceptions sustained.