Willis v. Ellis

Mayes, C. J., delivered the opinion of the court. On the 9th of November, 1909, Floyd Willis instituted suit in the circuit court of Rankin county against W. C. Ellis. The object of the suit was to recover from Ellis the sum of fourteen hundred dollars, claimed as damage for the breach of an alleged contract which Willis claims he made with Ellis, whereby Ellis contracted to sell to Willis one hundred bales of cotton. The case made by the declaration is substantially as follows, viz.: Willis states that on the 19th of August, 1909, he purchased from Ellis one hundred bales of cotton at twelve cents per pound f. o. b. Florence, Mississippi, for October delivery, and that the contract of purchase was first made over the telephone, and later both parties confirmed the contract by letter. Willis states that, while his own letter confirming the sale called for September delivery, he verbally accepted the counter proposition, contained in Ellis’ letter, fixing October as the time of delivery. Willis further states in his declaration that, while Ellis stipulated in his letter of confirmation that delivery of the cotton should be made at Mt. Olive, subsequently Ellis waived this stipulation and agreed to delivery in Jackson. Willis then alleges that under the contract Ellis became bound to sell and deliver him one hundred bales of cotton during the month of October, 1909, of the quality, weight, and price fixed by the contract, but that Ellis totally disregarded his obligation, and neglected and refused to deliver the cotton called for in the contract, and claiming damage in the sum of fourteen hundred dollars. The letters are filed and attached to the declaration and are as follows: “August 19th, 1909. “W. 0. Ellis, Esq., Florence — Dear Sir: Beg to confirm purchase of you to-day 100 B|S cotton, middling and above, running recéipts, weights guaranteed, at 12c f. o. b. Florence, September delivery. Kindly confirm same to me. “Yours truly, Floyd Willis.” [206] “Florence, Miss., Aug. 20th, 1909. “Mr. Floyd Willis, Jackson, Miss. — Dear Sir: Your confirmation of the purchase of one hales cotton delivery. Yon make it September delivery, when it should be October. I am willing- to put up margin for faithful performance of contract and require the same of you. Cotton be compressed at Mt. Olive, and settle by compress weights. “Yours truly, W- C. Ellis.” ' To this declaration a demurrer was filed, raising the question of the validity of the contract of sale, and claiming that the alleged contract was void, because in violation of § 4779 of the Code of 1906. The main provision of this section is as follows: “A contract for the sale of any property, for the price of fifty dollars or upwards, shall not be allowed to be good and valid unless the buyer shall receive part of the personal property, . . . or shall actually pay or secure the purchase money, or part thereof, or unless some note or memorandum, in writing, of the bargain be made and signed by the party to be charged by such contract, or his agent thereunto lawfully authorized.” The trial court sustained the demurrer, and, on the refusal of Willis to amend, dismissed the declaration, from which judgment an appeal is prosecuted here. In our judgment these two letters fulfill all the requirements of section 4779 of the Code. The letter written by Ellis, standing by itself, would not be a sufficient memorandum to satisfy the statute; but its internal reference to the letter written by Willis to the writer identifies certainly and incorporates into the Ellis letter the letter written by Willis to him. In writing to Willis, Ellis says: “Your confirmation of one bales cotton received. I am willing to put up margin for faithful performance of contract,” etc. There was but one contract so far as this record shows, and there was hut one confirmation written by Willis to Ellis, and that was the [207] confirmation of the contract stated in Willis’ letter to Ellis. When Ellis speaks of the “faithful performance of contract” in his letter of the 20th of August, written the next day after the contract was made, he must refer, and can only refer, to the contract stated by Willis in his letter. The quantity of cotton bought, the price to be paid, etc., is fixed by Willis’ letter to Ellis, and it is of no moment that Ellis says, “Your confirmation of one bales cotton” received. -Since Willis’ letter is by reference incorporated into and becomes a part of the memorandum signed by Ellis, we look to it for full ascertainment of what the contract was, and not to Ellis’ letter. In fact, Ellis does not undertake to state the terms of the contract in any way, and the failure to state the number of bales of cotton sold to Willis leaves his letter no more indefinite than the failure to state the price to be paid, etc. In short, if the measure of Willis ’ right must be found on the face of Ellis’ letter alone, of course, he would be bound to fail in this suit. But Willis’ letter becomes Ellis’ letter by internal reference and incorporation, and the Willis letter clearly shows that one hundred bales of cotton were sold to Willis by Ellis. In the case of Waul v. Kirkman, 27 Miss. 823, repeated in Fisher v. Kuhn, 54 Miss. 480, and McGuire v. Stevens, 42 Miss. 724, 2 Am. Rep. 649, it is held that the memorandum, required by the statute to be signed by the party sought to be charged therewith, need not be the sole repository of all the terms of the contract.; but, if it refers to and incorporates into it another writing, which clearly shows the contract, the memorandum is good. In the case of Waul v. Kirkman, 27 Miss. 823, which all of our decisions follow, it is stated: ‘ ‘ The rule upon this point is well settled to be that the memorandum, in order to satisfy the statute, must contain the substantial terms of the contract, expressed with such certainty that they may be understood from the contract itself, or [208] some other writing to which it refers, without resorting to parol evidence. Boydell v. Drummond, 11 East 142; Parkhurst v. Van Courtland, 1 J. C. R. 280; 1 Sug. Vend. (1 Am. Ed.) 89; Blagden v. Bradbear, 12 Ves. 466. For otherwise all the danger of perjury, intended to be guarded against by the statute, would be let in. And when reference is made in the memorandum to another writing, it must be so clear as to prevent the possibility of one-paper being substituted for another.” See, also, Wilkinson v. Taylor Mfg. Co., 67 Miss. 231, 7 South. 356. This same rule is stated in the case of Freeland v. Ritz, 154 Mass. 257, 28 N. E. 226, 12 L. R. A. 561, 26 Am. St. Rep. 244, and in volume 20, p. 278, of Cyc. Under the notes found in this last citation, countless authorities are collected sustaining this same view. It is true that the letter of Ellis contains some counter propositions; but the two letters, taken together, clearly ascertain the contract. For instance, Ellis states, “You make it September delivery, when it should be October delivery;” but Willis states that he verbally assented to October delivery, and this, we think, he had a right to do, as we will undertake to show later. Again, Ellis states, “Cotton to be compressed at Mt. Olive” for de-' livery, whereas Willis had fixed Florence as the place; but the declaration alleges that both parties verbally agreed that delivery should afterwards be made at Jackson, and waived this stipulation. The statute only requires that, the contract for the sale be evidenced by writing, and in order to make a perfect contract of sale, within the meaning of the statute, no place of delivery need be- stated therein, since, in the absence of such stiplation, the law fixes a place of delivery. This being. true, the place of delivery is not an essential feature of a contract of sale.- In ascertaining damage, it may become material to prove the place of delivery, and this can be done if it is not named in the contract. It is [209] true that there is1 no written ácceptance shown on the part of Willis, hut none was required. Our own court so held in the case of Waul v. Kirkman, 27 Miss. 823, and in volume 20 of Cyc., at page 254, in the notes, will he found many authorities on this point. In this authority it is stated that in the case of Rector Provision Co. v. Sauer, 69 Miss. 235, 13 South. 623, this court held the contrary; hut an examination of the case shows that this question was not involved. Reversed and remanded.