American Oak Leather Co. v. Porter Bros.

Robinson, J. 1 The questions we are required to determine are presented by a certificate of the trial judge. The certificate states that in January, 1893, the plaintiff orally agreed with the defendants to ship to them eighty rolls of leather, of which eight were to be sent each week until all were delivered. The only written evidence of the agreement which is essential to a determination of the questions [118] certified is contained in two instruments, copies of wMcbi are as follows: “American Oak Leather Co.: ■ 1-16 93. 5 rolls No. 1, Hd. stuff, 130 lbs.................. 23 5 135 23 10 140 23 5 B 130 21 5 66 135 21 5 u a 140 21 5 u No. 1, a 110 22 5 u 120 22 5 120 22 5 B 110 20 5 u 120 2D 10 u u 125 20 10 a B Machine, 90-100 “ .......■........... 18 “90 days Feb. 1st, 8 rolls per week, extra 30 or 40 day® added at interest 6 per cent. M. p. Lake.” 2 “St. Louis, Jan. 29, 1893. Porter Bros. & Hack-worth, Ottumwa, Iowa — Gentlemen: We are in receipt of your order given to our Mr. Lake, and, after figuring . the matter over carefully, we have concluded that the only way we oan fill the orders is as follows: We will ship you the entire eighty rolls now, and make you any reasonable térros that we can agree' on, giving you ninety days net, charging you interest at the rate of six per cent, per annum on time after ninety days, provided you will give us your note, so> we can use it in bank. But we cannot agree to hold the leather for a number of weeks, shipping such quantity per week, for the simple reason that we are no longer tanning harness leather, and aré closing out this stock as fast as we possibly can. As far as the ten rolls of 18 c leather are concerned, we fear you would not like it. It is country tannage, and not calculated to give very good satisfaction. Though if you wish us- to send it, we will [119] be very glad to do so> as the party is anxious to have us move it If this proposition is satisfactory to you, please let us hear from you by return mail to that effect. Of course, you understand our position in the matter, and we trust you will see your way clear to handle the entire eighty rolls in one shipment, or at the most in two shipments. Please let us hear from you on the subject by return mail. Yours, very truly, American Oak Leather Company. “Dictated by J. A. Gardner, Agent.” It is alleged in the petition that the memorandum is “dated January 16, 1893, written and signed in defendant’s order book, on page 26 thereof, by M. B. Lake, duly authorized agent of plaintiff,” and that the letter is “signed by J. A. Gardner, the lawfully authorized agent of said plaintiff.” 3 Several questions are certified, but they are really comprehended in two: (One) Are the writings sufficient written evidence to take the case out of the statute of frauds? (Two) Is parol evidence competent to prove that the writings refer to the oral contract of sale pleaded? Section 3663 of the' Code is as follows: “Except when otherwise specially provided, no evidence of the contracts enumerated in the next succeeding section is competent unless it be in writing and signed by the party charged or by his lawfully authorized agent.” Among the contracts enumerated in the next succeeding section are “those in relation to the sale of personal property, when no part of the property is delivered and no part of the price is paid.” None of the personal property in controversy in this ■action was delivered, and no part of the price has been paid. It is the general rule that two or more papers Which have been executed as parts of one transaction [120] may be read and construed together, in order to ascertain the scope and effect of the transaction, and ascertain whether it is within the statute of frauds. Lee v. Mahoney, 9 Iowa, 348; Myers v. Munson, 65 Iowa, 425; Manufacturing Co. v. Goddard, 14 How. 456; Beckwoith v. Talbot, 95 U. S. 289; Olson v. Sharpless (Minn.) 55 N. W. Pep. 126. It is ateo the general rule that the evidence necessary to take a contract out of the statute of frauds must all be furnished by the writings, parol evidence not being admissible to supply evidence not found in them. 1 Greenleaf Ev. section 268; Watt v. Cranberry Co., 63 Iowa, 730; Vaughn v. Smith, 58 Iowa, 558; 3 Phillips Ev. 351; 8 Am. & Eng. Enc. Law, 722. A memorandum of sale in some respects similar to the first of the two papers we have copied was considered in Manufacturing Co. v. Goddard, supra, and held sufficient, with parol evidence, to take the case out of the statute. The doctrine of that case was questioned in Grafton v. Cummings, 99 U. S. 100, and does not appear to be supported by the weight of authority. However that may be, it is not controlling in this state; Our statute provides that no evidence of contracts such as that alleged in this case is competent unless it be in writing, and signed by the party charged, or by Ms lawfully authorized agent. The first writing we have set out as it is written in the order book of the defendants. It is true that parol evidence is admissible to show the meaning of technical terms and trade symbols used in the instrument, which were sanctioned by usage in the business in which they wer e used, and which must have been understood by the parties in interest. But, if such evidence be admitted, and the facts shown to be as claimed by the plaintiff, and if it be conceded that the instrument was signed by the agent of the plaintiff, still a contract would not be shown. Even with the aids mentioned the writing would fail to show who was the [121] buyer, wbo the seller, or tbaib an agreement to sell anything bad been made. The instrument is in form neither a contract nor an order. If it was the latter, an acceptance by the plaintiff was required to make a contract. Machine Co. v. Richardson, 89 Iowa, 525. If the letter we have set out refers' to' the first instrument, it is treated as an order, and there is no evidence in writing that the instrument was ever more than an unaccepted offer to purchase. We conclude that the case is within the statute of fraiuids. The questions as we have stated them' must be answered) in the negative. See Watt v. Cranberry Co., supra. The judgment of the distinct court is affirmed.