Goldsmith v. Stiglitz , 228 Mich. 255 ( 1924 )

We shall not attempt an analysis of the cases cited by counsel; they have all been examined, but to consider and distinguish them all would render this opinion unnecessarily prolix. We should note, however, that some of the rules laid down in some of the earlier cases have been modified by the "uniform sales act" (3 Comp. Laws 1915, § 11832 et seq.).

1. It is insisted that the statute of frauds has not been complied with. The sufficiency of the substance of the memorandum of July 2d is not questioned, nor can it be; it was admitted that it was signed by the defendant; it was signed by the agent of the plaintiff. By the express terms of the statute the signing by an agent is authorized. 3 Comp. Laws 1915, § 11835; Bay State Milling Co. v. Saginaw Baking Co., 225 Mich. 557. Both parties were bound by this contract and there was no want of mutuality.

2. It is insisted that inasmuch as the so-called confirmation or acceptance of July 10th differed in terms from the memorandum of July 2d there was no binding contract between the parties. If the memorandum of July 2d had only been signed by defendant and had been but an order, a different question would be presented, and there would be much of merit in the contention of defendant's counsel; but, as we have pointed out, the memorandum of July 2d was a valid, binding contract between the parties. The so-called confirmation or acceptance was but an offer to change the terms of the agreement and was not accepted by defendant. See Shepherd Hardwood Products Co. v.Gorham Bros. Co., 225 Mich. 457.

3. It is insisted that there was no tender of performance on the part of the plaintiff so as to place defendant in default. We have quoted but a few excerpts from the correspondence which passed between the parties. Taking it as a whole in connection with the other evidence in the case we do not think it so clear that we may say, as a matter of law, that defendant had waived a tender, that a tender was excused. We think a jury would be justified in finding that it would have been but an idle ceremony to make a tender, that it had been waived by the letters and the conduct of the defendant. The trial judge should have submitted this question to the jury.

4. The plaintiff was bound to minimize his loss. This is settled law. We have noted the fact the Blue Rose rice matures later than Honduras rice. There is no evidence in the case that there was a market for "futures" but plaintiff's testimony shows that the rice was within his control October 10th and that the market price was then about 8 cents and the market was falling. He sold the rice later in the month for 6 1/2 cents and this was the price on the last day of the month which was the last day of the contract. The trial judge, accepting this figure, directed a verdict for $1,400 and interest. In this he was in error. The market was falling and this fact was well known to plaintiff. It was his duty to do what he could to save the loss. Beebe v. Cullinane, 214 Mich. 37 . Under the testimony the question of the amount of damages plaintiff was entitled to recover was for the jury.

We have examined the other assignments of error but they do not merit discussion.

For the errors pointed out the case must be reversed and a new trial granted. Defendant will recover costs of this court.

CLARK, C.J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, and WIEST, JJ., concurred.