Peoria Grape Sugar Co. v. Babcock Co.

BAKER, District Judge (after stating the facts). The statute of frauds of this state is as follows: “No contract for the sale of any goods, for the price of fifty dollars or more, shall be valid, unless the purchaser shall receive part of such property, or shall give something in earnest to bind the bargain, or in part payment, or unless some note or memorandum in writing of the bargain be made and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized.” 3 Burns’ Ind. Rev. St § 6635 (Rev. St. 1881, § 4910). The goods agreed to be sold, as disclosed in each paragraph of the counterclaim, largely exceed the price of $50. The sole contract of sale exhibited in each paragraph of the counterclaim is evidenced by the writings copied in the foregoing statement of the case. The defendant does not count upon a verbal contract of sale, coupled with a delivery to and acceptance by the purchaser of a part of the property, nor upon part payment, nor upon the giving of something of value in earnest to bind the bargain. The right to recover damages for failure to deliver the property mentioned in each paragraph of the counterclaim rests solely upon the written instruments upon which the several causes of counterclaim are bottomed. The right of the defendant to recover damages is grounded upon the validity of the contracts evidenced by the notes or memoranda in writing of the bargain. The note or memorandum in writing of the bargain, when relied upon as the foundation of a right to recover damages for failure to deliver the property, must disclose with substantial accuracy every fact material to constitute a contract of bargain and sale. It is, therefore, essential that such a note or memorandum shall contain within itself a' description of the property agreed to be sold, by which it can be known or identified, of the price to be paid for it, of the party who sells it, and of the party who buys it. It is settled to be indispensable that the written memorandum should show, not only who is the person to be charged, but also who is the party in whose favor he is charged. The name of the party to be charged is required by the statute to be signed, so that there can be no question of the necessity of his name in the writing. But the authorities have equally established that the name, or a sufficient description, of the other party is indispensable, because without it no contract is shown, inasmuch as a stipulation or promise by one does not [895] bind him, save only to the person to whom the promise was made, and, until that person’s name is shown, it is impossible to say that the writing contains a memorandum of the bargain. In Grafton v. Cummings, 99 U. S. 100, 107, it appeared that the purchaser of property at auction signed an agreement which did not mention the name of the seller. The court, speaking by Mr. Justice Miller, say: “The statute not only requires that the agreement on which the action is brought, or some memorandum thereof, shall he signed by the party to ho charged, but that the agreement or memorandum shall he in writing. In an agreement of sale there can be no contract without both a vendor and a vendee. There can be no purchase without a seller. There must be a sufficient description of the thing sold and of the price to be paid for it. It is, therefore, an essential element of a contract in writing that it shall contain within itself a description of the thing sold, by which it can he known or identified, of the price to be paid for it, of the party who sells it, and the party who buys it. * * * The name of the vendor, or some designation of him which could be recognized without parol proof extraneous to the instrument, was an essential part of that instrument to its validity.” In Sanborn v. Flagler, 9 Allen, 474, the contract was to deliver to plaintiff certain iron. Bigelow, C. J., said: “It is urged that the paper does not disclose which of the parties ia the purchaser and which is the seller, and that no purchaser is in fact named in die paper. This would be a fatal objection, if well founded. There can be no valid memorandum of a contract which does not show who are the contracting parties.” In the case of Ridgway v. Ingram, 50 Ind. 145, the requisites of The note or memorandum in writing referred to in the statute of frauds were considered by the court, and it was there said by Wooden, J., in delivering the opinion of the court, that— “A memorandum, in order to be sufficient within the statute, must state the contract with such reasonable certainty that its terms may be understood from Tie writing itself, without recourse to parol proof.” The case of Lee v. Hills, 66 Ind. 475, involved a counterclaim founded upon a memorandum in writing. The counterclaim was for the recovery of damages for the failure to deliver certain personal property sold by the plaintiff to the defendant. It was alleged that by the mutual mistake of the parties, the word “sold” was omitted from before the name of the conn ter claimant. It was held that the memorandum, the word “sold” being omitted, was not a note or memorandum in writing of the bargain within the meaning of the statute of frauds, and that parol evidence was not admissible to supply the omitted word in the memorandum. The case of Wilstach v. Heyd, 122 Ind. 574, 23 N. E. 963, was an action to recover damages for the alleged breach of a contract for the sale of a lot evidenced by a memorandum in writing. The memorandum of sale was as follows: “$200. New Albany, April 23d, 1887.' “Received of J. B. Wilstach two hundred dollars as part purchase money of a lot at $2,560. Balance twenty-three hundred and sixty dollars. “Geo. Heyd, Admr. 13st. Jacob Heyd.” And there were indorsed on the reverse side these words: “'The lot No. 14 Ekin Ave.” It was held that the memorandum was in [896] sufficient to support an action for damages for its breach, 'and that the words indorsed on the reverse side were insufficient to help it out It was said that the words indorsed on the reverse side of the memorandum could not be regarded as a part of it because there was nothing in the memorandum referring to them. And it was further said that, even if these words were read into the memorandum, the description of the lot was insufficient, inasmuch as it would require the aid of parol proof to identify it. The note or memorandum counted on in each paragraph of the counterclaim is insufficient to sustain an action for its breach. It does not disclose the name of the purchaser, and there is nothing in either of the letters copied in the statement which can aid its insufficiency. The description of the property is clearly insufficient. What shall be held to constitute a car of glucose can only be ascertained by parol proof. And the admission of such proof would most likely result in establishing a contract at variance with the understanding of one or the other of the contracting parties. Until the quantity or amount constituting a car load has been mutually agreed upon, the minds of the parties have not met on one of the most important terms of the bargain. The contract is so indefinite in this particular that it is incapable of enforcement. For the court to hear proof, and adjudge that the parties agreed upon 50 barrels of glucose as a car load, would be to permit a material part of the contract to be proved by parol evidence dehors the contract. And the price to be paid for the glucose is equally uncertain. Whether the parties understood that the price to be paid was $>1.17¿ per 100 pounds, as alleged, or whether it was to be $1.17-J per gallon, is not disclosed by the contract. The understanding of the parties, whatever it was in this regard, rests in parol. Each memorandum discloses the name of the seller, but it. fails to disclose the name of the purchaser, the amount of property to be sold and delivered, or the price to be paid therefor. They must be held invalid as contracts for whose breach damages may be recovered. Let the demurrer be sustained.