Sabre v. Smith , 62 N.H. 663 ( 1883 )

The written agreement of November 23, 1880, contains the names of the two contracting parties, the signature of the one sought to be charged, the consideration, and the promise and acceptance of the other party. There is consequently nothing lacking to give it validity as a contract for the sale of three hundred tons of hay by the deceased to the defendant, and for its delivery within the time specified, under s. 16, c. 221, Gen. Laws, which provides that "No contract for the sale of goods, wares, or merchandise, for the price of thirty-three dollars or more, is valid . . . . unless some note or memorandum thereof is in writing, and signed by the party to be charged, or by some person by him thereto authorized." The defendant's construction of the agreement in this respect has no support in law.

His claim that performance was excused by reason of Putnam's death stands no better. The subject-matter of the agreement was property, and not personal services requiring skill or taste. Putnam stipulated to do nothing which might not be done by proxy, and it is therefore immaterial whether performance was prevented by his death, or otherwise, because if it was, the contract being of a kind which might be carried out by his representatives, it was incumbent on them to fulfil it within a reasonable time after his decease, or respond in damages.

The remaining question arises from the exclusion of the plaintiff's offer to testify that he sent Putnam a letter, mailed at Providence within fifteen days after the date of Putnam's proposal, accepting his proposal to deliver the two hundred tons of hay.

Conceding that the plaintiff might properly have been allowed to testify to the mailing of the letter, he was rightly excluded as a witness to its contents, of which Putnam must be deemed to have had knowledge, because the presumption is that he received the letter by due course of mail (1 Gr. Ev., s. 40); and this presumption is not rebutted by the mere fact that the letter was not found among his papers after his decease. The case presented, then, is the ordinary one where the living party to a transaction offers himself as a witness in relation to it, when the other party, being dead cannot testify; and the statute bar applies. G. L.,

Exceptions overruled.

SMITH, J., did not sit: the others concurred.