Wilson v. Lewiston Mill Co. , 81 N.Y. Sup. Ct. 612 ( 1893 )

VAN BRUNT, P. J.

This action was brought to recover damages for a breach of an alleged contract for the purchase of cotton. The answer consisted of a general denial, a defense that the contract was void under the statute of frauds of Maine, and also that, according to the custom of the cotton trade, no contract was ever made. Upon the trial the defendant offered evidence tending to show that one Hawley, an employe of the plaintiff, being at Lewis-ton, in the state of Maine, on Saturday, November 1, 1890, called at defendant’s place of business, and saw the president and treasurer of defendant, and had a conversation with them in reference to the sale of cotton to them, and they requested Hawley to communicate with his firm, and ask for an offer to sell cotton for a little later shipment than customary, the payment to come in February; and that the same day he wrote to his firm, requesting them to send an offer to the defendant, (which letter was excluded, and an exception taken to the ruling.) That on Monday, November 3d, the plaintiff telegraphed the defendant, as follows:

“Nov. 3rd, 1890.

“To Lewiston Mills, Lewiston, Maine: We will sell five hundred Middling, and five hundred Strict Middling, January shipment, ten one half landed, based on January contracts, nine sixty-three. B. T. Wilson & Ca”

—That Hawley, on that day, subséquent to the receipt of the telegram by the defendant, saw the president and secretary of defendant, and after some conversation they authorized him to transmit a bid to the plaintiff of 10 3-8 cents; and that the defendant gave him until Wednesday, November 5th, to accept the offer. That Hawley then wrote to the plaintiff, among other things, as follows:

“They did, however, too late In the day to telegraph you, make me a bid of 10 3/8 c. for 500 B/C Mid. and B/C Strict Mid,, terms and conditions same as those mentioned in my letter of Saturday. * * * You are to reply to the Lewiston Mills Wednesday morning.”

—That, on Wednesday morning, plaintiff telegraphed defendant as follows:

“Day Message. Nov. 5, 1890.

“To Lewiston Mills, Lewiston, Maine: Your offer accepted. Ten three-eighths five hundred Middling, and five hundred Strict Middling, January shipments, delivered Lewiston. [Signed] R. T. Wilson & Co.”

—And also wrote the defendant a letter on the same day as follows:

“New York, Nov. 5, 1890.

“Lewiston Mills Co., Lewiston, Maine—Dear Sirs: We hereby confirm our sale to you of 500 B/C Midd., land at Lewiston, January shipment, cash on arrival, at 10 3/8 per lb., and 500 B/Cotton, St. Middling, January shipment, cash on arrival, at 10 3/8 per lb. Thanking you for the order,

“Yours, truly,

[Signed] “R. T. Wilson & Co.,

“Per Walker.”

—That on the 5th of December the defendant wrote the plaintiff as follows:

“Lewiston, Maine, Dec. 5th, ’90.

“R. T. Wilson & Co., New York: We find it will be impossible for us to take the 1,000 bales of cotton mentioned in yours of the 5th ult., as it is impossible to get the funds. Our payments for the next three months are all we can meet without taking any more burdens. The hope that the present stringency in the money market would cease soon seems certain not to be realized.

“Yours, truly, F. W. Parker, Treas.”

—And that Hawley and the defendant’s officers had some conversation about arranging the matter amicably, which resulted in nothing. The plaintiff also gave evidence tending to show damage because of failure of defendant to take the cotton. The defendant offered in evidence the statute of frauds of Maine, as follows:

“No contract for the sale of goods, wares, or merchandise for $30 or more shall be valid unless the purchaser accepts and receives part of the goods, or gives something in earnest to bind the bargain or in part payment thereof, or some note or memorandum thereof is made, and signed by the party to be charged thereby, or by his agent.”

Both sides offered in evidence certain authorities of Maine, relating to the statute of frauds; whereupon the court directed a verdict for defendant, which was duly excepted to, and, from the judgment thereupon entered, this appeal is taken.

The only question involved upon this appeal is whether there was a sufficient memorandum in writing, to comply with the statute of frauds. It seems to us clear that, notwithstanding the testimany of Hawley that the defendant told him to transmit its bid to the plaintiff, he did not imagine for one moment that in writing any part of the letter of November 3d he was acting as the agent of the defendant. It will be seen that he is writing about a bid that he has received as representing the plaintiff, and not making an offer as the representative of the defendant. Hawley, in his letter, after telling his employers about the difficulty he had had to get any offer out of the defendant, says, “They did, however, * * * make me a bid,” etc., clearly showing that Hawley, in transmitting this bid, was acting for his employers, and for no one else; and therefore Hawley’s letter of November 3d was not a sufficient memorandum or note to satisfy the statute of frauds.

It is, however, urged by the plaintiff that, even if this letter of Hawley was not a sufficient memorandum, the recognition of the contract by the letter of the defendant of December 5, 1890, together with the prior correspondence, did constitute such memorandum. In considering this question, it may, perhaps, be of some importance to determine whether the locus contractus was in Maine or New York. We think that the law of Maine must control, as the lex loci contractus almost invariably governs. The transaction in question took place in Maine, the bid was made to plaintiff’s employe in Maine, and the cotton was to be delivered in Maine; and the fact that the acceptance of the plaintiffs was mailed in New York could not make the contract a New York contract. It seems to be the law of Maine that, in order to satisfy the statute, the memorandum must contain, within itself, or by reference to other written evidence, the name of the vendor and vendee, and all the essential terms and conditions of the contract, expressed with such reasonable certainty that all its terms may be gathered from the written evidence, without any aid from parol testimony. Williams v. Robinson, 73 Me. 186. If the telegram of November 5th, and the letter of November 5th, had contained the whole of the terms and conditions of the contract, then the reference, in defendant’s letter of December 5th, to the communication of the plaintiff of 5th ult., would have so identified those papers as to have entitled them to be read with the letter of December 5th, and thus the complete contract would have been shown by writing. But it is conceded that neither the telegram nor letter of November 5th contained the whole of defendant’s offer, and that they do not contain all the terms and conditions of the alleged contract. In order to ascertain these, we must refer to Hawley’s letters of November 1st and 3d; and these are in no way referred to in the only communication signed by the defendant, and therefore cannot be appealed to, according to the rule laid down in the case cited, to establish the contract. The case of Jenness v. Iron Co., 53 Me. 20, seems to establish that there was no sufficient memorandum to satisfy the statute. The judgment appealed from should be affirmed, with costs. All concur.