Timmons v. Bostwick

Lumpkin, J.

(After stating the foregoing facts.)

1. The court erred in overruling the demurrer to the petition. As originally filed, it relied upon three written papers as constituting a contract between the plaintiff and the defendant, by which the latter agreed to sell and the former to buy twenty bales of cotton deliverable at certain times. We do not think they constituted such a contract. The first paper contained a statement by the defendant that he had sold to the plaintiff twenty bales of cotton at ten and a half cents per pound, to be delivered as stated. This paper was signed alone by the defendant. No consideration for it is shown. It therefore amounted to nothing more than an offer by the defendant, which could be withdrawn prior to acceptance within a reasonable time. The second paper is relied on as constituting an acceptance by the plaintiff of the offer thus made by the defendant. It did not purport to make any such acceptance; nor 'did it purport to refer to any purchase by the plaintiff from the defendant. On the contrary it stated, that, “In consideration of one dollar in hand paid, I beg to confirm having sold for your account twenty (2Ó) bales of cotton,” etc. This was directed, like a letter, to the defendant, and ended with the words, “very truly yours,” followed by the signature of the plaintiff. Not the most liberal construction could make this statement mean that the plaintiff accepted the antecedent offer of the defendant to sell cotton to him at a certain price, or that the plaintiff .bound himself by such a statement to become the purchaser. It is true that in the left-hand corner of the paper appears the word “ Accepted,” followed by the signature of the defendant. But what did he accept ? Certainly not his own prior offer to sell cotton to the plaintiff. It could only mean that he accepted a sale which the plaintiff represented that he had made of twenty bales of cotton on account of the defendant, deliverable as stated in that paper. The second paper is a somewhat unique instrument. Why the plaintiff should recite the receipt of one dollar as a consideration for confirming having sold twenty bales of cotton for the account of the defendant is not easily to be perceived. This paper makes no reference whatever to the former one, does not purport to accept any proposition or agreement made in it, or contain the slightest intimation that the plaintiff agreed to buy cotton from the defendant.

The third paper relied on by the plaintiff was a letter from him to the defendant, dated November 12, in which the plaintiff stated: “I beg to notify you that I am now ready to receive and pay for the 20 b/c. at 10% cents per pound round sold to me on July 2nd, 1909, f. o. b. cars Arlington, Ga. I respectfully ask that you deliver same between now and the 30th day of November.” This, letter does not purport to be an acceptance of the proposition originally made by the defendant, and could not have been an acceptance of ,sueh proposition in accordance with its terms. The defendant’s agreement was to sell cotton, to be delivered five bales in September, ten -in October, and five in November. The time for the delivery of the first two installments was past, and only five bales would have remained to be delivered, if the contract as originally proposed had been accepted and carried out. The petition alleges that on September 30 the price of cotton was 12% cents per pound, and on October 30 it was 14% cents per pound. The plaintiff could hardly expect to fail to close the contract until after the time for the delivery of most of the cotton had passed, in accordance with the proposal, and-after the price had advanced 8% cents per pound, and after the defendant (as indicated by the petition as amended) had withdrawn from or repudiated the agreement, and then close the contract by such a letter. Moreover, the language employed is not that of a direct acceptance, but of a notification that he is ready to receive at that time cotton purporting to have been previously sold to him. The decision in Terry v. International Cotton Co., 136 Ga. 187 (70 S. E. 1100), does not apply to the present case. While the paper there involved began with the same formula as -to confirming “having sold for your account” certain cotton on specified terms, it further stated: “This cotton is to be delivered by you, and accepted by us in any warehouse in Shellman, 6a., during the month of October, 1909.” It was signed by the person claiming to be the purchaser, followed by the word “Accepted,” and the signature of the person claimed to be the seller. It was held that while the expression, “sold for your account,” standing alone, might not indicate a contract of sale by one of the parties to the other, yet that, taken as a whole, the writing had that effect. The paper claimed in the present ease to have operated as an acceptance by the plaintiff of the proposition of sale, or as a contract of sale, contained no such words as those quoted above, showing an agreement by one of the parties to deliver cotton to the other, and by the latter to accept it. It contained only the words which were declared, in the case cited, not to indicate a contract of sale by one of the parties to the other.

We think it is clear that these papers do not on their face show a contract of the character claimed by the plaintiff. Taking the pleadings most strongly against the pleader, the added statement of the plaintiff’s readiness and willingness to receive the cotton and offer to pay for it does not set out a distinct acceptance aside from the allegations considered, or, if so, show that it occurred before the defendant withdrew his offer.

2. The demurrer raised the point that the contract was one which the statute of frauds required to be in writing (Civil Code (1910), § 3222, par. 7), that the writings on their face did not show a contract of sale from the defendant to the plaintiff, and that this could not be cured by parol testimony, or by allegations dependent on parol testimony for support. In Smith v. Jones, 66 Ga. 338 (42 Am. E. 72), it was held that contracts within the statute of frauds must be in writing, signed by the party to be charged, or some one authorized by him to sign, and must contain a statement of the agreement sought to be enforced. It was further held that a letter referring generally to some contract as existing, without stating any of its terms or otherwise identifying it, was not sufficient to bind the writer to a contract the terms of which must be supplied by parol. In the opinion Jackson, C. J., said (p. 342): “There is therefore nothing in writing signed by her which complies with the statute so as to bind her; and taking the two papers together, unless the parol testimony be let in to connect them and show that the letter referred to the receipt, there is nothing signed by her to bind her to the contract set out in the receipt. If the parol testimony could show that, away would go the statute, and it had as well be admitted to show the whole contract. And such we understand to be the full current of authority, whether cited by the one or the other side here. Brown'e on Stat. of Frauds, § 344 et seq., and cases cited. The rule should not be relaxed now when the floodgates are open wide as to the competency of witnesses, and the only breakwater left is the requisition to put this class of contract, and others of similar character, in writing.” In North & Co. v. Mendel, 73 Ga. 400 (54 Am. R. 879), Hall, J., said (p. 404): “If, however, it be necessary to adduce parol evidence, in order to connect a signed paper with others unsigned, by reason of the absence of any internal evidence in the signed paper to show a reference to, or connection with, the unsigned papers, then the several papers taken together do not constitute a memorandum in writing of the bargain, so as to satisfy the statute.” While it was intimated that separate papers might contain internal evidence connecting them, without an express reference of one to the other, the statement of Jackson, C. J., above quoted, as to not relaxing the rule, was approved. See also Lester v. Heidt, 86 Ga. 226 (12 S. E. 214, 10 L. R. A. 108); Douglass v. Bunn, 110 Ga. 159 (35 S. E. 339); Borum v. Swift & Co., 125 Ga. 198 (53 S. E. 608); Oglesby Grocery Co. v. Williams Mfg. Co., 112 Ga. 359 (37 S. E. 372); Halsell v. Renfrow, 14 Okla. 674 (78 Pac. 118, 2 Ann. Cas. 286, and note on page 293).

We need not discuss to what extent a reference to the subject-matter in hand, or to other papers or their contents, may be sufficient to show a connection between several papers which are claimed to constitute one contract; nor the rule that ambiguities may be explained by parol. Perhaps the most liberal view on that subject will be found in Beckwith v. Talbot, 95 U. S. 289 (24 L. ed. 496); White v. Breen, 106 Ala. 159 (19 So. 59, 32 L. R. A. 127). While these 'and similar eases announced somewhat broadly the rule of showing surrounding circumstances in connection with a contract contained in several papers, yet none of them which have come to our attention hold that a paper signed by the two contracting parties, showing no connection with any other paper, and purporting on its face to declare one kind of contract, can be so connected by parol with another paper, previously signed by only one of the parties, as to engraft upon the second paper a contract entirely different from that which it expresses. An examination of the cases cited and those similar to them will show that it was considered that, under their peculiar facts, there was something sufficient to show a connection between the various papers involved. The third paper in the present case has already been discussed.

3. By amendment the plaintiff sought to cure the difficulties above indicated. He alleged that on September 4, 1909, he offered to accept and receive the twenty bales of cotton, and to pay for them at the rate of 10(/2 cents per pound, and also demanded five bales of cotton which he alleged that the defendant had sold to him, to be delivered during the month of September. The difficulty about these allegations, 'as an effort to complete the former imperfect contract, is that, according to the terms of the original offer, if accepted, the plaintiff had no right to call for twenty bales of cotton on September 4, nor even to .call for five bales. The offer contemplated the delivery of five bales in the month of September. Had it been accepted, the defendant would have had that entire month to make the delivery; and the plaintiff can hardly claim to have made a valid acceptance of a proposition by making a demand' or offer which was not in accordance with it.

Ag'ain, the plaintiff alleged in his amendment, that on October 2, 1909, he again offered to accept and receive from the defendant the twenty bales of cotton, which he alleged that the defendant had sold to him, as set out in the original petition, offering to pay for the cotton at the rate of 10% cents per pound; and also that he demanded of the defendant the ten bales-of cotton, which he alleged that the defendant had sold to him for delivery in October. What has been said above applies equally to these allegations. Indeed, the plaintiff does not distinctly set them out as being acceptances of the contract, but rather as offers or demands in compliance with what he claims to have been the contract previously made. The foregoing discussion renders it unnecessary to consider the question of a parol acceptance of a written proposition.

The petition as amended did not set out a cause of action against the defendant or state a contract which was enforceable under the statute of frauds. Accordingly, it should have been dismissed on demurrer. Judgment reversed.

All the Justices concur.