Sanborn v. Flagler

Bigelow, C. J. The note or memorandum on which the plaintiffs rely to maintain their action contains all the requisites essential to constitute a binding contract within the statute of frauds. It is not denied by the defendant that a verbal acceptance of a written offer to sell merchandise is sufficient to constitute a complete and obligatory agreement, on which to charge the person by whom it is signed. In such case, if the memorandum is otherwise sufficient when it is assented to by him to whom the proposal has been made, the contract is consummated by the meeting of the' minds of the two parties, and the evidence necessary to render it valid and capable of enforcement is supplied by the signature of the party sought to be charged to the offer to sell. Indeed, the rule being well settled that the signature of the defendant only is necessary to make a binding [476] contract within the provisions of the statute relating to sales of merchandise, it necessarily follows that an offer to sell and an express agreement to sell stand on the same footing, inasmuch as the latter, until it is accepted by the other party, is in effect nothing more than a proposition to sell on the terms indicated. The acceptance of the contract by the party seeking to enforce it may always be proved by evidence aliwide. The objections on which the defendants rely are twofold. The first is, that the note or memorandum does not set forth upon its face, in such manner as to be understood by the court, the essential elements of a contract. But this position is not tenable. The nature and description of the merchandise, the quantity sold, the price to be paid therefor, the terms of payment and the time within which the article was to be delivered, are all clearly set forth. But it is urged that the paper does not disclose which of the parties is the purchaser and which the seller, and that no purchaser is in fact named in the paper. This would be a fatal objection, if well founded. There can be no contract or valid memorandum of a contract, which does not show who are the contracting parties. But there is no such defect in the note or memorandum held by the plaintiffs. The stipulation is explicit to deliver merchandise to S. R. & Co. It certainly needs no argument to demonstrate that an agreement to deliver goods at a fixed price and on specified terms of payment is an agreement to sell. Delivery of goods at a stipulated price constitutes a sale; an agreement for such delivery is a contract of sale. Nor can there be any doubt raised as to the intrinsic import of the memorandum concerning the character or capacity in which the parties are intended to be named, A stipulation to deliver merchandise to a person clearly indicates that he is the purchaser, because in every valid sale of goods delivery must be made by the vendor to the vendee. We can therefore see no ambiguity in the insertion of the name of the purchaser or seller. The case is much stronger in favor of the validity of the memorandum, in this respect, than that of Salmon Falls Manuf. Co. v. Goddard, 14 How. 446. There only the names of the parties were inserted, without any word te [477] indicate which was the buyer and which was the seller. It was this uncertainty in the memorandum which formed the main ground of the very able dissenting opinion of Mr. Justice Curtis in that case. So in the leading case of Bailey v. Ogdens, 3 Johns. 399; there was nothing in the memorandum to show which of the two parties named agreed to sell the merchandise. But in the case at bar, giving to the paper a reasonable interpretation, as a brief document drawn up in the haste of business, and intended to express in a few words the terms of a bargain, we cannot entertain a doubt that it indicates with sufficient clearness that the plaintiffs were the purchasers and the defendant the seller of the merchandise, on the terms therein expressed. Indeed, we can see no reason why a written agreement by one party to deliver goods to another party does not as clearly show that the latter is the purchaser and the former the seller as if the agreement had been in express terms by one to sell goods to the other. The other objection to the memorandum is, that the name of the party sought to be charged does not appear on the face of the paper. If by this is meant that the signatures of all the persons who are named as defendants are not affixed to the memorandum, or that it is not signed with the copartnership name under which it is alleged that the persons named as defendants do business, the fact is certainly so. But it is not essential .to the validity of the memorandum that it should be so signed. An agent may write his own name, and thereby bind his principal; and paroi evidence is competent to prove that he signed the memorandum in l is capacity as agent. On the same principle, a partner may by his individual signature. bind the firm, if the contract is within the scope of the business of the firm, which may be shown by extrinsic evidence. Soames v. Spencer, 1 D. & R. 32. Long on Sales, 38. Browne on St. of Frauds, § 367. Higgins v. Senior, 8 M. & W. 834. Williams v. Bacon, 2 Gray, 387,393. Besides, in the case at bar, the action is in effect against Flagler alone. He only has been served with process and appears to defend the action. Whether he signed as agent for the firm or in his individual capacity is immaterial In either aspect, he is liable on the contract. [478] It is hardly necessary to add that the signature is valid and binding, though made with the initials of the party only, and that paroi evidence is admissible to explain and apply them. Phillimore v. Barry, 1 Camp. 513. Salmon Falls Manuf. Co. v Goddard, ubi supra. Barry v. Coombe, 1 Pet. 640. Exceptions overruled.