Groover, Stubbs & Co. v. Warfield & Wayne

Trippe, Judge. 1. Section 1950, Code, paragraphs 1 and 7, is but a reproduction of the 17th section of the statute of frauds, in so far as it applies to this case. The 7th paragraph of the section makes the contract binding when “ the buyer shall accept part of the goods sold, and actually receive the same.” In this case there were three distinct sales of cotton, to-wit: on the 11th, 12th and 14th days of April, 1873. That sold on the 11th, and part of what was sold on the 14th, were accepted by the buyers and actually received by them. The reply made to this is, that as the cotton was sold for cash, and as, by section 1593, Code, it “shall not be considered as the property of the buyer, or the ownership given up until the same shall be fully paid for, although it may have been delivered into thé possession of the buyer,” the conditions of the statute of frauds were not complied with, and plaintiffs cannot recover. It is not necessary to notice at large the point involved in this position. It might be sufficient to say that this is not an action for goods sold and delivered, when it might become necessary for the seller so to part with the dominion of the goods sold as to make them the property of the buyer, but it is a suit for damages for a breach of contract. Such an action may often be sustained and meet the demands of the statute, where one for goods sold and delivered could not be. But we do not think the section quoted (1593) has any such effect as is claimed for it. It was- simply intended to protect the owner of cotton and other products against fraudulent purchasers ; for the next section makes it penal for the purchaser to dispose of such commodities without paying for them. It surely, whilst passed for the benefit of the owner, could not have been meant to give power to a purchaser to buy, accept and receive such products and then refuse to execute the bargain by paying for them, on the ground that they were not his property, and when they were not his, merely because he had not paid for them. This guaranty or protection, secured by special statute to the owners of such articles, never was [652] designed to affect any rights they had as sellers, under section 1951; nor do we think it touches the construction to be given to that section. If the buyers accepted the cotton sold at any one or more of the sales, or part thereof, and actually received the same, they were bound by the contracts under which the receipts and acceptances were made, and were liable in damages for refusing to perform such contracts. 2. But if, under any of the contracts of sale, there was no memorándum, or in the language of section 1950, no “promise” was signed by the parties to be charged therewith, and no acceptance and actual receipt of the cotton, or part thereof, by them, and no earnest or part payment, the buyers were not bound by that contract. Plaintiffs claim that the “sale tickets” made out by themselves of the sale made on the 12th of April, were sufficient to meet the demand of the statute, although there was no acceptance and actual receipt of the whole or part of the cotton by defendants. It has been heretofore stated that the section 1950 of the Code, so far as it applies to this case,- was but a reproduction of the 17th section of the statute of frauds. The latter requires “that some note or memorandum in xoriting of the said bargain be made and signed by the parties to be charged by such contract,” etc. The former, in order to make the contract “ binding on the promisor,” provides that “the promise must be in writing, signed by the party to be charged therewith.” But we do not determine that these differences between the tAvo affect the construction to be given to them. As to the term “ party” being used in one and “parties” in the other, which is also the case in the 4th and 17th sections of the statute of frauds, it has been often held that the difference in these íavo made no distinction in the construction to be given to both: Browne on Frauds, section 365, and cases cited; Broom’s Commentary on the Common Law, 421. Nor do we pronounce whether the construction of the section in the Code is different- from what it otherwise would be, on account of the change of the Avords “note or memorandum” to the word “promise.” In the case before us there was neither note, memorandum, or [653] promise in writing, signed by the party sought to be charged. As to the “sale tickets” made out by the sellers and signed by them, although it might have been sufficient to bind the plaintiff, it was not binding on the buyers. Benjamin, in his work on Sales, page 174, says: “ Under both sections (of the statute of frauds) it is well settled that the only signature required is that of the party against whom the contract is to be enforced. The contract, by the effect of the decisions, is good or not at the election of the party who has not signed.” In support of this he cites, Allen vs. Bennett, 3 Taunt, 169; Thornton vs. Kempster, 5 Taunt, 786; Laythoarp vs. Bryant, 2 Bingham, (North Carolina,) 735. The same rule is stated in 1 Greenleaf’s Evidence, section 268, which says: “Neither is it necessary * * * that both (parties) be legally bound to the performance (of the contract,) for the statute only requires it to be signed by the party to be charged therewith, that is by the defendant against whom the performance or damages are demanded.” See, also, Clason vs. Bailey, 14 John, 434, where the question is fully discussed, and many authorities cited, recognizing that where one party signs the contract it may be good to charge him with the performance of it, when he could not enforce it against the other: Browne on Frauds, section 366; Western vs. Russell, 3 Vesey & Beame, 192; Hawkins vs. Holmes, 1 Peirre Williams, 770. Many other cases might be cited where an action has been maintained on a contract signed only by one of the parties. But I have not found one, unless it was brought against the party who did sign. In the case of Clason vs. Bailey, supra, the Chancellor, in pronouncing the opinion, said: “ It appears to be settled that though the plaintiff has signed the agreement he never can enforce it against the party who has not signed it. The remedy in ,such case is not mutual. But notwithstanding this objection, it appears from the review of the cases that the point is too well settled to be now questioned.” Linton & Company vs. Williams, 25 Georgia, 391; Douglass vs. Stears, 2 Nott & McCord, 207, were cases against the parties who signed, and so is every case which I have been able to find. [654] In sustaining the actions in such cases, expressions have frequently been used, implying that there was a mutual obligation resting on the parlies which each could enforce against the other, although but one may have signed the contract. But, as stated, I have seen no case where judgment has been given affirming a recovery had in an action brought by the one who signed, on the ground that both parties were bound because the plaintiff himself had made a memorandum and affixed his own signature. 3. Where cotton factors sell cotton consigned to them, they may, in their own names, recover the damages resulting from a breach of contract by the buyer, although they may be bound to pay the same, when recovered, to their consignors. They have a special property in the cotton. They have a lien on it for their commissions, which commissions attach on the very damages they may recover, and would be increased thereby. We did not understand this to be controverted. 4. The measure of damages in such cases is the difference between the contract price for the cotton and the value thereof on the day of the breach: Benjamin on Sales, 559, and the authorities there cited. In Barrow vs. Arnaud, 8 Queen’s Bench, 604, the rule is stated to be “ the difference between the contract and the market price of such goods at the time the contract is brokenand the reason assigned for such a measure of damages is, “that the seller may take his goods into the market and obtain the current price for them.” 5. The Court, in the charge to the jury, limited the plaintiff’s right of recovery “to the amount of damages actually sustained by themselves.” This may have misled the jury, and probably did. As heretofore stated, although the plaintiffs might be bound to pay over to the owners of the cotton whatever they recovered in the suit, less their commissions on the same, they yet were entitled to maintain the action for the whole amount of damages occurring from the breach of the contract. Their commissions would be but a small per cent-age of this — say two and a half per cent. That two and a half per cent., or the amount of the commissions, was the [655] real and actual damage to plaintiffs. Counsel for plaintiffs claim that these commissions were just what the verdict was for. We cannot say as to this; but as the jury did find for the plaintiffs on the main question, to-wit: that there was a breach of contract by the defendants, and as they were probably misled by this charge of the Court, we think there should be a new trial. It might be added that the charge, in so far as it was stated that the “sale tickets” of the 14th of April, as it was not signed by the defendants, was not sufficient to take the case out of the statute of frauds, seemed to ignore the fact that part of the cotton sold that day had been delivered, and was accepted and actually received by the defendants. If so, they were bound by the contract for the purchase that day made. Judgment reversed.