McGowan v. Lustig-Burgerhoff Co.

Argued March 6, 1928. Plaintiff sued for damages resulting from defendant's refusal to receive a car of tomatoes alleged to have been bought by defendant through a broker, Stanley, acting as defendant's agent. When the tomatoes arrived at Scranton, defendant rejected them as not of the quality and condition purchased. The defense was two-fold: (1) that the defendant bought of Stanley as principal, and not of plaintiff through Stanley's agency; (2) that in any event the sale memorandum signed by Stanley was insufficient to charge defendant under section 4 of the Sales Act of 1915 P.L. 543.

The trial judge directed a verdict for defendant on the ground that section 4 barred recovery. That action, and the exclusion of an item of evidence on damages, are assigned error. The pertinent part of section 4 is as follows: "A contract to sell or a sale of goods ...... of the value of $500 or upwards shall not be enforceable by action unless ...... some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf."

There was oral evidence, sufficient, if believed by the jury, to support a finding that an authorized officer of defendant corporation instructed Stanley at Pittsburgh to purchase for defendant a car of tomatoes then in Pittsburgh on specified terms and conditions for shipment to defendant in Scranton; that Stanley, as defendant's agent bought the car which had been the subject of the instructions given to him over the telephone and signed a sales memorandum. While defendant offered evidence denying the position taken in plaintiff's case, it was the duty of the jury to whom the evidence should have been submitted, to find the fact.

The sales memorandum is as follows:

"Arthur F. McGowan,

21st Pike Sts., Pittsburgh, Pa.

May 20, 1924.

P F E 20920. 1008 ct. Tomatoes, at $2.40 crate, Pitts.

Inspected and accepted for Lustig-Burgerhoff Co., Scranton, Pa.

To be shipped to same with all vents closed and plugs in.

Stanley Brokerage Co., J.J. Stanley."

Though not signed by the defendant the "party to be charged," the evidence would support a finding that it is signed by defendant's "agent in that behalf." It is true that the authority of the agent to sign for the defendant was not in writing. While the Act of March 21, 1722, 1 Sm. L. 389, relating to sale, etc. of land requires the authority of the agent in writing, section 4 of the Sales Act does not expressly require it in the sale of goods. We are of opinion that although the decisions in other states are not in accord on the subject, written authority in the agent is not essential: this conclusion was assumed without discussion in Rasche v. Campbell, 276 Pa. 268, at 271, and in Hill v. Marcus et al., 81 Pa. Super. 314; see generally 25 R.C.L. Sec. 324 p. 685; 27 C.J. Sec. 372, p. 295; Bay State Milling Co. v. Saginaw Baking Co., 225 Mich. 557; Dusenberry, Inc. v. Import Drug Co., 253 Mass. 368.

It is argued however, that if the evidence of the agency be sufficient to go to the jury the writing is nevertheless insufficient. The decisions are against that view. No particular form of words is necessary. "Any note or memorandum in writing indicative of the intent of the parties, and being sufficiently precise to enable one to ascertain the terms of the contract, and signed by the party to be charged is sufficient": Mason-Heflin Coal Co. v. Currie, 270 Pa. 221; see too Mfrs. Light Heat Co. v. Lamp, 269 Pa. 517; Hill v. Marcus, 81 Pa. Super. 314; Franklin Sugar Ref. Co. v. Howell, 274 Pa. 190; Paturzo v. Ferguson, 280 Pa. 379, 384.

The writing is signed on behalf of the buyer who is sought to be charged; it is addressed to the seller, the plaintiff; the subject of the sale and the quantity and the price plainly appear as "1008 ct. tomatoes at $2.40 crate, Pitts." If any merchant in the business had any doubt (this court considers it free from doubt) that "P F E 20920" were the initials and number of a freight car that contained the tomatoes, the abbreviation may be explained by oral evidence (Williston on Sales, 2d Ed. Vol. 1, Sec. 102) without contravening the rule that omitted terms essential to a contract may not be so supplied. The same is true of the abbreviation "Pitts." Customary commercial understanding declares that in a transaction recorded as this was, the price is payable f.o.b. Pittsburgh.

If the jury accept plaintiff's view that Stanley was authorized to act for defendant, it will be noted that the writing states that the car was "inspected and accepted for Lustig-Burgerhoff Co., Scranton, Pa.," the defendant, by Stanley for shipment to Scranton. There was no delay in transportation. Complaint is made that in shipping to Scranton, plaintiff consigned the car to himself on an order-notify bill of lading. Defendant received the shipping documents promptly but declined to accept the sight draft because of the condition of the tomatoes. As no terms of credit are stated in the writing, the transportation was for cash, and the method of collection pursued is well recognized: section 20, Sales Act, 1915 P.L. 549.

We must also sustain the assignment complaining in substance that the court refused to permit plaintiff to put in evidence an undenied paragraph of the statement of claim averring a sale in the open market at a stated loss. The denial in the affidavit of defense was insufficient, merely a statement that defendant had neither knowledge nor means of learning anything about the truth of the averment; Buehler v. Fashion Plate Co., 269 Pa. 428; Franklin Sugar Ref. Co. v. Hanscom, 273 Pa. 98; Johns et al v. Johns, 88 Pa. Super. 47.

Judgment reversed and new trial awarded.