Williams v. Robinson , 1882 Me. LEXIS 18 ( 1882 )

Virgin, J.

At common law, mutual executory contracts for the sale and purchase of goods, wares and merchandise, of whatever value, and however provable, were binding and enforceable. The statute of frauds intervened and prescribed the kind of evidence by which alone they might be established, by entailing upon the parties of certain specified classes of contracts the disability of enforcing them so long as their essential terms remained in mere unwritten words. The statute did not declare

such contracts illegal, or void, but simply said they should not be actionable, with certain exceptions, unless evidenced by written evidence.

Thus the section invoked by this defendant provides, in substance, that when an oral executory contract for the sale and purchase of goods, wares and merchandise, valid at common law, involves property of the value of thirty dollars or more, and the purchaser receives and accepts no part of it, nor gives anything by way of earnest or in part payment thereof, it shall not be valid for the purpose of enforcement, unless some note or memorandum thereof be made and signed by the party to be charged, thereby, or by his agent. E. S., c. Ill, § 4. The "note or memorandum” of the contract, cannot, of course, be the contract itself, but the evidence by which it is to be proved, if the defendant requires it, in the trial of an action at law brought to recover damages for its breach, or of a bill instituted to enforce specific performance. Lawrence v. Chase, 54 Maine, 196; Bird v. Munroe, 66 Maine, 337, 343-4; Middlesex Co. v. Osgood, 4 Gray, 447.

The memorandum need be signed by one only of the parties— the party to be charged. Barstow v. Gray, 3 Maine, 409; Getchell v. Jewett, 4 Maine, 350, 366; or by both, Atwood v. Cobb, 16 Pick, 227; or counterpart memoranda may be made and signed by the respective parties. Small v. Quincy, 4 Maine, 497. So that if a mutual oral executory contract, valid at common law, be made, and one of the parties obtain from the-other the " note or memorandum” thereof contemplated by the statute, but does not give a corresponding one, he may enforce it although tjie other cannot, the former having secured, while the other has not, the evidence which the statute has made indispensable to its enforcement. Rogers v. Saunders, 16 Maine, 92, 97; Laythoarp v. Bryant, 2 Bing. N. C. (29 E. C. L.) 469.

At common law, while every simple contract, whether oral or written, must be founded on a legal consideration, it need not be expressed in the writing itself, for parol evidence is admissible to prove it. Cummings v. Dennett, 26 Maine, 397; Bean v. Burbank, 16 Maine, 458. Nor did the statute of frauds, even before the amendment expressly declaring it unnecessary, ever require the consideration to be recited in the note or memorandum signed by the party to be charged. Packard v. Richardson, 17 Mass. 122 ; Levy v. Merrill, 4 Maine, 180, 189 ; King v. Upton, 4 Maine, 387 ; Getchell v. Jewett, 4 Maine, 350, 366; Gillighan v. Boardman, 29 Maine, 81. In Bean v. Burbank, supra, and Vantassel v. Hathaway, 53 Maine, 18, no acceptance of the contract or other consideration was attempted to be proved. The distinction between § § 4 and 17 of the St. 29 Car. IE, c. 3, corresponding to E. S., c. Ill, § § 1, 4, set up in the English courts and followed by some of the courts of some of the States, was never recognized in this state, the question having been settled in Massachusetts in Packard v. Richardson, supra.

But while, as before seen, the memorandum need not necessarily mention the consideration, that being provable by parol testimony, nevertheless, in order that the court may ascertain the rights of the parties from the writing itself without resort to oral testimony (Riley v. Farnsworth, 116 Mass. 223, 225-6), to satisfy the statute, the memorandum must contain within itself or by some reference to other written evidence, the names of the vendor and vendee and all the essential terms and conditions of the contract, expressed with such reasonable certainty as may be understood from the memorandum and other written evidence referred to, (if any) without any aid from parol testimony. O'Donnell v. Leeman, 43 Maine, 158 ; Jenness v. Mt. H. I. Co. 53 Maine, 20; Horton v. McCarty, 53 Maine, 394, 396; Washington I. Co. v. Webster, 62 Maine, 341. And when a memorandum is made and signed and delivered between the parties as and for a complete memorandum of the essential terms of a contract, and it is capable of a clear and intelligible exposition, it is conclusive between the parties and parol evidence is incompetent to contradict or vary its terms or construction; and if, in fact, some of the conditions actually made be omitted from it, the party defendant cannot avail himself of them. Small v. Quincy, 4 Maine, 497; Coddington v. Goddard, 16 Gray, 436; Hawkins v. Chace, 19 Pick. 502; Ryan v. Hall, 13 Met. 523; Warren v. Wheeler, 8 Met. 97; Cabot v. Winsor, 1 Allen, 546, 551; Remick v. Sandford, 118 Mass. 102, 106, 2 Whart. Ev. § 901, and notes.

Such is the general rule governing written contracts; and the statute of frauds leaves it together with its exceptions as it found them. Benj. Sales, § 205.

By the enactment of this statute, the legislature interposed a few safeguards against mistakes and frauds in certain kinds of contracts, by making certain additional things indispensable to the remedy. The security thereby afforded makes the remedy depend upon proof which shall not rest upon the recollection or integrity of witnesses, but upon something reliable to which the parties may resort for a solution of all their doubts and disputes, the signature thereto, serving inter alia, to identify the evidence by which the signer is to be bound. And when a memorandum, .like the one now before us, has been deliberately made, executed . and .delivered in conformity with the statute, and its terms are .sensible and free of all ambiguity, it cannot be varied as to its ■ substance by parol; otherwise the great purpose of the legislature would be thwarted.

Applying these principles to the case at bar, and the exceptions bo far as the question of consideration and the three requested instructions are concerned, must be overruled. .

The jury must have found under the charge, that the mem■orandum was made, signed and unconditionally delivered by the •defendant to the plaintiff, as and fora complete memorandum of .the contract, so far as the matters contained in the request go, •and that the consideration was proved. Its terms are clearly «expressed and contain all the elements necessary to give it legal ■effect as a written contract.

The instruction in relation to the kind of ice to be delivered, related wholly to the question of damages (as will be seen by the latter part of the charge where it occurs), and was favorable to the defendant, wherefore he was not aggrieved. Moreover the question which he now raises Was not made at the trial. And if it had been, we do not think the memorandum need state in totidem verbis that the ice intended by the parties was Bond brook ice; for that is implied by the signature to the memorandum. Johnson v. Raylton, (L. R.) 7 Q. B. D. 438; S. C. 24 Al. L. J. 470. Moreover parol evidence identifying the subject matter of the contract does not destroy the sufficiency of the memorandum, but when the subject matter is thus ascertained, the memorandum may be construed to apply to it. Mead v. Parker, 115 Mass. 413; Slater v. Smith, 117 Mass. 96 ; Swett v. Shumway, 102 Mass. 365.

Exceptions overruled.

Appleton, C. 3., "Walton, Barrows, Daneorth and Symonds, JJ., concurred.