James v. Penn Tanning Co.

Opinion by Mr. Justice Elkin, This is an action of assumpsit to recover for the breach of an alleged contract for the sale or exchange of hemlock timber and bark. The defendant corporation is extensively engaged in the operation of tanneries, ánd the legal plaintiffs were, and the use plaintiff is, engaged in the lumber business. The tanning company needed bark and the lumber people wanted to sell bark, and perhaps purchase timber. This was the situation of the parties at the time negotiations began about the subject-matter of this controversy. Crary was the president of the Penn Tanning Company and had the general management of its business at the time the alleged contract was entered into. In the first clause of the amended statement of claim, it is averred that the defendant on or.about March 29, 1895, entered into an agreement with the James Brothers whereby defendant agreed to cut, fell and peel the hemlock trees upon what was known as the Crawford lands, containing about 4,700 acres, and to exchange the timber and logs taken therefrom suitable for sawing, for hemlock bark to be delivered by the James Brothers, at the price and upon the conditions agreed upon between the parties as to amounts and deliveries. At the trial the burden was on the plaintiff, first, to establish a valid contract, then to prove performance, or proffer to perform, and still further to show refusal on the part of defendant to perform amounting to a breach. The plaintiff undertook to meet the burden resting on it by offering in evidence a memorandum made by Crary on January 21, 1895, upon which'were indorsed in the handwriting of James these Words : “ Agreed upon 3-29-95.” The memorandum was not [639] signed by Crary, or James, nor did it contain any mention of the Penn Tanning Company, nor did it purport to be, at the time of making, an executed contract on the part of anyone. It is not pretended that any officer, authorized to do so, had at any time formally executed the alleged contract in the name of the Penn Tanning Company, or indeed that any perspn, either as an officer of the corporation or as an individual, had executed the memorandum of agreement by signing his name. The memorandum, the very foundation upon which the right to recover depends, and without which there can be no recovery in this case, does not contain the name of the defendant corporation, was not executed by any officer of the tanning company, either with or without authority as and for its corporate act and deed, or indeed in any other manner, nor was anything done up to the time when it is asserted there was an acceptance to show on its face that the tanning company was in any manner connected with it, unless such connection should be inferred from the fact that it had to do with hemlock bark and trees. It is apparent the memorandum was very hastily drawn. Its meaning is, to say the least, doubtful, and if there are mutual covenants, against whom are they to be enforced ? This cannot be determined from the writing. "What do they mean ? This is uncertain. IIow much bark was to be delivered on one side, and how many trees or how much timber on the other, is not stated, nor, in our opinion, can these material matters be determined with any legal certainty from the instrument relied on, considered in its parts or as a whole. After careful consideration, we have concluded the memorandum is too vague, indefinite and uncertain in its terms, to be specifically enforced, and that an action for an alleged breach cannot be sustained. In our opinion, there is no escape from this conclusion, and for the following reasons: First, no parties are mentioned in the agreement upon which it is to be binding. No individual, firm, partnership or corporation signed the agreement, nor does the memorandum itself, or the evidence produced at the trial, show that it was ever authorized to be executed. It never was finally executed by anyone. The memorandum begins with a declaration that a Mr. James was here on a certain date and that the writer had said to him, “ I told him that we would pay” certain prices. Who “I” was [640] and wbo is meant by “we” is not explained in the writing, nor does anything appear on its face, which in any manner explains what parties are to be bound thereby, and certainly not the slightest reference is made to the appellee company. Second, no time is mentioned for the beginning or ending of the alleged contract, and nothing definite is provided as to the length of time during which the sale or exchange of hemlock timber for bark is to continue, unless, as is suggested, the duration of the contract is to be determined by the number of cords of bark produced, but the measurement of time by the cord is unknown to the calendar and is too indefinite in law to determine the legal rights of parties under the facts of the present case. Third, the subject-matter of the alleged agreement is indefinite and uncertain as to amounts and areas. There is no definite area of land described from which timber is to be taken, nor is there, any fixed amount of bark to be delivered for purposes of exchange. If the transaction amounted in contemplation of law to a sale of standing timber, not for immediate severance, then under the rule of all our cases, it would be real estate, and a bare reference to the Crawford lands would be insufficient in point of description to make a valid contract under the statute of frauds, but independently of this consideration, it cannot be, that a reference in the memorandum which says to “ take no timber than what is on the Crawford lands ” can be construed as a binding covenant to cut, fell and peel the hemlock timber on several thousand acres of land. The provision that no timber was to be included in the exchanges than such as should be taken from the Crawford lands does not mean that all the timber from all the Crawford lands must be so exchanged. What the parties evidently intended, and what was subsequently done, was that timber cut from the Crawford lands from time to time was. exchanged for bark delivered at various times as suited the purpose and convenience of the parties. The slight reference to the Crawford lands in the memorandum of agreement falls far short of an express covenant to sell or exchange all the trees on all of the tracts of land. Fourth, the memorandum does not show that the minds of the parties ever came together on any specific thing, and certainly it cannot be pretended that the Penn Tanning Company by any. corporate action authorized such an [641] agreement in writing to be entered into. Indeed, the memorandum on its face, the subsequent correspondence between the parties,- and the proven facts clearly show that the parties intended a formal contract to be executed at a later date, which was never done. The memorandum relied on is lacking in aliinost all of the essential elements of a contract. It was not intended as an executed agreement, as clearly appears from letters which passed between the parties in November and •December, 1896, and in January, 1897, showing that almost two years after making the alleged agreement upon which appellant relies to recover, both parties had the understanding, aud so declared in writing, that the contract had never been executed. . This no doubt explains why the memorandum was so vague, indefinite and uncertain. It was intended as the basis upon which to make a formal contract in which the amount of bark to be furnished, and the extent of lands to be included, and other material matters, should be expressly stipulated. This was never done, and the understanding between the parties, whatever it was, can only legally be determined by the vague and indefinite writing set up in this case, and perhaps to some extent by what the parties did under it, but, in any event, the memorandum itself, or the acts of the parties under it, would not justify a court in holding as a matter of law that the.appellee had covenanted to sell, or exchange, all the hemlock timber on all the Crawford lands, or that it had agreed to accept an unlimited and indeterminate supply of bark from appellant, indefinite as to time of delivery and without reference to whether it was to be furnished from timber then owned by appellant or to include all that might be subsequently acquired. The letter of the lumber company addressed to the tanning company, dated August 4,1897, and the answer of the tanning' company of the same date, would seem to conclusively show that both parties understood their arrangement, whatever it was, only to apply to bark owned by the lumber company, and did not apply to such as might be purchased from other parties by appellant. From all these facts and circumstances, it seems perfectly clear that the parties never did finally execute a definite contract, nor was anything ever done to fix the amount of bark to be furnished on one side and timber on the other, nor was it ever determined to what [642] exact areas the proposed agreement should apply, but, in the absence of an express contract, the parties, taking the memorandum as a basis as to prices and deliveries, proceeded to make exchanges of timber and bark for a period of years, expecting no doubt at some time to execute a contract fixing amounts and defining areas, which was never done, and the courts cannot do for them what they have failed to do for themselves. From what has been hereinbefore said, it is clear that the judgment of the court below must be affirmed, and we do not deem it necessary to discuss the other assignments of error. But this must not be understood to mean that we disagree with the conclusion reached by the learned trial judge in the consideration of this case on other points. Independently of the question whether the president of the corporation could bind it under the facts of this case, or whether the alleged contract was subsequently ratified by the corporation, we hold that the memorandum of agreement is too vague, indefinite and uncertain to be enforced against the appellee company to the extent of compelling the sale or exchange of all the trees on all the tracts of land mentioned in the statement of claim, and since there was no obligation to sell or exchange all the trees or timber on all the lands, under the facts of this case there was no breach for which damages' can be recovered. Judgment affirmed.