Pierson-Lathrop Grain Co. v. Potter Lumber, Grain & Hardware Co.

COX, P. J. Action for damages for breach of contract to sell 10,000 bushels of corn. Trial by jury; verdict and judgment for plaintiff and defendant has appealed. The plaintiff claimed to have purchased 10,000 *392 bushels of corn from defendant and that defendant had refused to deliver it. The value of the corn was in excess of $30 and the contract is therefore within the Statute of Frauds and this statute was pleaded as a defense. The deal being in conversation over the telephone and it is claimed by plaintiff was consummated by the exchange of letters. On October 12, 1917, the plaintiff, whose place of business was at Kansas City, Missouri, wrote defendant at Iantha, Missouri, a letter confirming the oral contract previously made by phone for the purchase of 5,000 bushels of corn. The material parts of this letter are as follows: “We confirm purchase of you per phone 11 a. pi. of car 5,000 bushels corn No. 3 or better @ 1.14½ basis f. o. b. Iantha, Missouri. ... if December shipment 2 cents less, 5 cents per bushel margin to be deposited with us and kept good to the market . . . if shipment not made in time specified our option to accept, reject, extend time or buy in for shippers account. ’ ’ On October 15, 1917 a similar letter except as to price and time of shipment, which was for December, confirming purchase of 5,000 bushels of corn was written to defendant by plaintiff. Up to October 23rd, no reply had been received by plaintiff to either of these letters and on that day plaintiff wrote defendant the following letter: “We have drawn draft on you today for $500 margin on 10,000 bushels of corn which we have purchased from you on deferred shipment. It is usual to require a margin on trades made for deferred shipment and is one of our rules. We trust you will take up this draft promptly on arrival and pay it.” On October 24, 1917, Mr. Potter wrote plaintiff-for defendant as follows: “We have your letter addressed to the Farmers Grain & Implement Company of Iantha, Missouri, and note you have made draft for $500. We do not expect to margin this contract or any other contract that we make outside of buying options, You are *393 buying corn from us and if we get the cars, you will get the corn.” Plaintiff did not reply to this letter and there was no other correspondence until November 20, 1917, when plaintiff wrote defendant as follows: “Under date of October 12th, we purchased five thousand bushels of No. 3 corn for November shipment. Kindly bill this grain to us at Kansas City, Missouri.” On November 23rd, plaintiff again wrote to defendant asking when the corn bought October 12th would be shipped. On December 5th, plaintiff wrote to defendant asking when it might expect shipment of the 10,000 bushels. On December 17th, plaintiff again wrote defendant and in that letter set out the terms of the agreement of both purchases aggregating 10,000 bushels but made no reference to a deposit for margin and quoted therein a part of defendant’s letter of October 24th in which defendant had stated: “We do not expect to margin this contract or any other contract we make outside of buying options. You are buying corn from us and if we get the cars, you will get the corn” and suggested that defendant could, if he wished, wait until December 31st, and then plaintiff could buy other grain to replace that bought from defendant and they could settle on payment of the difference. On December 20th, plaintiff wrote that if defendant could not secure cars to ship to Kansas City, Missouri, shipment could be made to plaintiff at Ft. Worth, Texas. On January 5, 1918, plaintiff wrote defendant that it would extend the time to January 10th and unless defendant should be heard from by that date, plaintiff would buy grain and take steps to collect the difference in cost from defendant. Defendant did not answer any of these letters that were written by plaintiff after October 24, 1917. The only letter written by plaintiff was the one of that date above set out. After January 10, 1918, plaintiff drew on defendant for $4380 which defendant refused to pay and this suit followed. We have set out the material parts of all the letters that passed between the parties for it is from these letters *394 that the question of a contract in writing to comply with the Statute of Frauds must he determined. To bind a party by a writing signed by him the writing must contain the terms of the contract or must refer to some other writing from which the terms of the contract may be ascertained without the aid of oral testimony. A contract may be shown by letters or telegrams and if, when all the written communications between the parties are read together without the aid of oral testimony, except such as may be pertinent to show the situation of the parties and the circumstances surrounding the transaction, the essential terms of the contract can be ascertained with reasonable certainty, it is sufficient. [Young Men’s Christian Association of Kansas City v. Dubach, 82 Mo. 475; Fox v. Courtney, 111 Mo. 147, 20 S. W. 20; Dunham v. Hartman, 153 Mo. 625, 629, 55 S. W. 233; Meramec Cement & Material Co. v. Kreis, 261 Mo. 160, 169, 168 S. W. 1148; Peycke Bros. v. Ahrens, 98 Mo. App. 456, 72 S. W. 151; Leesley Bros. v. A. Rebori Fruit Co., 162 Mo. App. 195, 144 S. W. 138; Truskett v. Rice Bros. Live Stock Commission Co., 180 S. W. 1048.] The converse of that proposition necessarily follows and unless the letters or other writing's do either expressly or impliedly so refer to each other as to show that they are to be considered together and then when so considered, a contract is shown and its terms stated with reasonable certainty, the statute is not complied with. The petition was in two counts'based on the two separate purchases of grain. The facts relating to each were the same except the dates and prices. On October 12,1917, a conversation over the telephone resulted in an agreement by which plaintiff purchased from defendant 5,000 bushels of corn. The parties to this conversation, Mr. Sulbvan for plaintiff and Mr. Potter for defendant, disagreed in their testimony as to the terms of the contract as orally agreed upon over the phone — another illustration of the necessity for, and wisdom of, the statute. This conversation, of course, was not binding and on the *395 same day plaintiff wrote defendant a letter confirming the purchase and giving the terms. This provided for a cash deposit by defendant with plaintiff of 5‡ per bushel as follows: “5‡ per bushel margin to be deposited with ns and kept good to the market.” On October 15th another telephone conversation took place between the same parties followed by a letter of the same date confirming that purchase and contained the same provision for 5d per bushel margin to be deposited with plaintiff by defendant. Neither of these letters were answered and on October 23rd, plaintiff wrote defendant: “We have drawn draft on yon today for $500 margin on 10,000 bushels of corn which we have purchased from you on deferred shipment. It is usual to require a margin on trades made for deferred shipment and it is one of our rules.” Mr. Potter was an officer in the bank to which the draft was sent and also an officer in, and manager of, defendant company. He sent the draft back and then wrote the letter of October 24th. We think the letters of plaintiff to defendant of October 12th and 15th confirming the oral contracts of purchase, the letter of October 23rd in relation to the draft and the letter of defendant to plaintiff of October 24th are the only letters that can be considered in determining whether the requirements of the Statute of Frauds were met in this case. The letters written by plaintiff after October 24th were not replied to by defendant. The only letter written by defendant was dated October 24th and contained no proposition or offer to sell of any kind and hence the letters written afterward by plaintiff to which defendant did not reply cannot be construed to relate back to defendant’s letter of October 24th and give to it a meaning that did not appear without them. [Western States Refrigerating Company v. J. W. Teasdale & Company, 211 S. W. 693.] Eliminating all the letters after October 24th, we have left only the letters of plaintiff to defendant of October 12th and 15th confirming the oral agreements, the letter of October 23rd in relation to the draft and *396 defendant’s letter of October 24th. It is contended by plaintiff that defendant’s letter of October 24th impliedly referred to plaintiff’s letters of the 12th and 15th and that the statement of defendant in that letter, “You are buying corn from us and if we get the cars, you will get the corn” was an acknowledgment in writing on defendant’s part that it had sold to plaintiff the corn mentioned in the letters of the 12th and 15th on the terms therein stated. "We do not think so. This letter of the 24th shows on its face that it was written in answer to plaintiff’s letter of the 23rd. Plaintiff had written on the 23rd informing defendant that a draft for $500 had been drawn on defendant to cover per bushel on the 10,000 bushels of corn purchased and instead of stating, as it ought to have done, that it was in compliance with their letters of confirmation of the 12th and 15th, it stated: “It is usual to require a margin on trades made for deferred shipment and is one of our rules.” Plaintiff was asking a deposit of the 5‡ margin, as it stated, according to the usual custom and its own rules— not according to its contract with defendant as shown by its letters of confirmation of the 12th and 15th. Since plaintiff did not refer to its letters of the 12th and 15th in its letter of the 23rd to which defendant replied on the 24th, it would be most unreasonable to say that defendant’s letter without any direct reference to the letters of the 12th and 15th had implied referred to them and that defendant meant by its letter of the 24th to accept in writing the terms -stated in the letters of the 12th and 15th. We do not think this letter, which shows on its face that it was written in reply to plaintiff’s letter of the 23rd, can possibly be construed to refer to the letters of plaintiff of the 12th and 15th. The statement “You are buying corn from us” must have refered to the oral contract as Potter understood it and not the contract as stated in plaintiff’s letters. But if we say that this letter did refer to the letters of the 12th and 15th, there is still no contract, for defendant refused to pay the margin of 5‡ per bushel pro *397 vided for in those letters and by doing so refused to be bound by the terms stated in,them and the statement “You are buying corn from us” could only refer to the oral agreement which Mr. Potter claimed did not provide for the deposit of any margin and was conditioned on defendant being able to get cars in which to ship the com. In other words, the language “You are buying com from us” could only mean that you are buying corn from us but not on the terms stated in your letters of the 12th and 15th. The constmction that defendant did not intend to be bound by the letters of plaintiff on these dates is strengthened by the fact that those letters were not answered in due course. The letter of the 23rd was answered immediately and, had plaintiff not drawn on defendant for $500 as margin, it is not probable that any letter would have been written by defendant at all. Plaintiff relies strongly upon Pierson-Lathrop Grain Co. v. Barker, 223 S. W. 941, which in some respect was similar to this case but we think there is a clear distinction between that case and this on the facts. In that case as in this, there had been a telephone conversation followed b^ confirmatory letters but there had been no disagreement as to the terms of the sale as agreed upon over the phone. The letter written by the defendants in that case was in reply to letters asking whether the grain purchased could be shipped within the time provided, and in the reply the defendant clearly admitted the purchase and gave excuses for not having shipped it, and since there was no-contention that the letter of confirmation did not follow the oral agreement, it could well be said that the letter of defendant referred to both the oral agreement and the confirmatory letters. In this case there was a dispute as to the terms of the oral agreement. The inquiries of plaintiff as to when shipment would be made were not answered at all and the letter which defendant did write on October 24th was in answer to one of the 23rd in relation to a draft. This letter of plaintiff of the 23rd was couched in such *398 language as to draw the attention of defendant away from the letters of confirmation, and not to them, and there is nothing in the letter of the 24th that can be construed to refer either expressly or impliedly to the confirmation letters of the plaintiff. On the question involved each case must stand upon its own facts and we do not regard the facts in this case as being the same as in the Barker Case nor do we think we are in conflict with that case. We think the defendant’s demurrer to the testimony should have been sustained, and since the letters on which plaintiff relies did not show a contract as required by the Statute of Frauds, the judgment should be reversed and it is so ordered. Farrington, J., concurs; Bradley, J., concurs in separate opinion.