Hawkison v. Harmon

Lyon, J. Counsel for the defendant maintain that the testimony fails to show any contract for the sale and pur [554] chase of the trees; and if that proposition is not sustained, and it be held that a contract in form was so made, that such contract is void, under the statute of frauds. 1. Did the parties enter into such contract There is some apparent ground for the. argument that the letter of April 29, 1885, was a letter of inquiry, to ascertain whether the trees could be procured of the plaintiff, rather than an absolute order for them. But the two letters, of April 29th and May 8th, must be read together, and, being so read, there can be no doubt but that they constitute an absolute order for the trees, which became a contract of purchase and sale between the parties when the plaintiff accepted the same and shipped the trees as directed. In the letter of May 8th, the plaintiff (or, what is the same thing, his agent, Little) was requested to send the trees at once. It must be held, therefore, that a contract for the sale and purchase of the trees was closed, at least in form. 2. The claim that such contract is void within the statute of frauds cannot be successfully maintained. The point made against the validity of the contract is that no'note or memorandum thereof was made in writing, and subscribed by the party to be charged therewith. R. S. sec. 2308. The letter of April 29th was. .subscribed by Chase, the agent of the defendant, and that of May 8th by the defendant himself. Sec. 2327, R. S., provides that “ every instrument required under any of the provisions of this title (title 22) to be subscribed by any party, may be subscribed by the agent of such party lawfully authorized thereto.” This section is applicable to the present case. We conclude that the contract between the parties is not void under the statute of frauds. It follows that if the plaintiff has executed the contract on his part he is entitled to recover. No question is made but that the trees shipped by him fulfilled the requirements of the contract, as to description, quality, and quantity. If, therefore, he shipped them within a reasonable time after [555] he received the order therefor, he has fulfilled the contract on his part. The testimony tends to show that the shipment was made within a reasonable time. The plaintiff having established a prima faoia case by the testimony which he introduced on the trial, it was error to nonsuit him. See note to this case in 35 N. W. Rep. 28. — Rep. By the Court.— The judgment of the county court must be reversed, and the cause will be remanded for a new trial.