Rector Provision Co. v. Sauer

Campbell, C. J., delivered the opinion of the court. As the telegram sent by Gray to the appellees was not put in evidence, thé admission or declaration made by Gray to Rector that he had a telegram from his house “ confirming the sale,” was insufficient to satisfy the statute of frauds, because it does not show the terms of the sale, which is necessary. Frank v. Eltringham, 65 Miss., 281. It fails to show what sale was confirmed. We express no opinion on the ruling admitting the agent’s declaration as evidence, as that is not before us, since it was admitted at the instance of the appellant. If the telegram sent by Gray to the appellees, and which counsel for the appellees treat as being in evidence, was before the court in connection with all the correspondence between the parties, it would appear that the “note or memorandum in writing of the bargain,” made and signed by the party to be charged, was insufficient; for, if it be assumed that the declaration of Gray to Rector is evidence of a memorandum in writing, made and signed by his principals, it would be held that they accepted the offer conveyed by Gray’s telegram, and that is insufficient to charge them, because the two telegrams together failed to “ show the substantial terms of the bargain, so that it may be seen and understood from the writing, and without the aid of parol testimony.” Frank v. Eltringham, 65 Miss., 281. There is no mention in the [238] telegram sent by Gray of the price of the article, which is the essential part of the contract, and that which gave rise to this controversy. 8 Am. & Eng. Ency. L., pp. 722, 726. So, in any view of this case, the action of the circuit court in instructing for the defendants was correct. The presumption invoked by counsel for the plaintiff, to the effect that the declaration by Gray that he had a telegram confirming the sale, should be accepted as evidence of a sufficient memorandum (one containing all that is necessary) to charge the parties, cannot be indulged. It cannot be held to prove any thing more than, that some sale was confirmed, and it devolved on the plaintiff' to show what sale was confirmed, and it was not sufficient to prove it by parol evidence. The plaintiff had the telegram sent by Gray, and interrogated witnesses about its terms. If that had been put in evidence, it would have appeared that the writings signed by the parties sought to be charged were insufficient, and it is not allowable to obtain by intendment the result which should be reached by direct evidence, and which it plainly appears could not be thus reached in this case. Affirmed.