Majority
p. 277West v. Newton. (Before Duer, Campbell, and Bosworth, J.J.) Oct. 19, 20; Nov. 20, 1852.
Headnote
Semble, that a contract in writing to sell and deliver coal at a stipulated price, although signed by the vendor alone, is not void under the Statute of Frauds.Such a contract is mutual on its face, the price to be paid for the coal on its delivery being a sufficient consideration for the undertaking of the vendor to deliver it.
Where it is proved that the vendor by any subsequent act recognised the validity of the contract, it is probably binding on both the parties; but whether it is rendered so merely by its delivery to the vendee—dubitatur.
When, by the terms of the contract, the vendee was to direct at what places in the city of Hew York the coal should be delivered; the designation of the places hy a notice to the vendor before the time fixed for the delivery of the coal, is a condition precedent to his obligation to make the delivery.
Hence, in an action claiming damages for the non-delivery of the coal, unless it is proved that the requisite notice was given in due time to the vendor, the plaintiff must be nonsuited.
Held, that in the principal case this necessary proof had not been given. Judgment for defendant, dismissing complaint, with costs, accordingly rendered.
This action was brought upon a- bond given by the defendants on an attachment issued against the property of Jacob Carrigan', of Philadelphia. The plaintiff claimed damages against Carrigan for the non-fulfilment of a contract to deliver coal, and procured an attachment to be issued against his property in Yew York, to relieve which property from' the lien, the defendants gave the bond in question. In their pleas the defendants set up the same matters in defence, which Carrigan might have interposed had he himself been sued upon his contract. The pleadings are voluminous, but their contents need not be stated, as no question in the cause turned upon their construction. The issues made by the pleadings were tried before the chief justice and a jury in May term, 1852; and upon the trial, the contract given in evidence was as follows:—
“I do hereby agree to deliver to J. Selby West, at such places as he shall (Erect, during the months of August, September, and October next in about equal quantities each month,
p. 278
five hundred tons of egg and five hundred tons of good size stove coal, best quality of red ash Peach Orchard, at five dollars per ton, cash, or interest added, after delivery, as he shall prefer. The above coal to be in good order and gross tons. Credit not to be over three months.
“ Moréis Buckman, Agent,
“ For Jacob Oaeeigan, Jr.
“ Hew York, April 16,1846.”
Ho counterpart was executed by the plaintiff. A brother of the plaintiff testified that at some time during the months of August, September, and October, and he believed in September, though it may have been in October, he heard a conversation between the plaintiff and Morris Buckman, who had acted as agent for Carrigan in making the contract, which conversation had reference to the place where the coal was to be landed, and'the plaintiff told Buckman to send the coal to the foot of 28th street. The counsel for the plaintiff also put in evidence the following correspondence between the plaintiff and Carrigan:—
“ Hew York, Oct. 28th, 1846.
“ Mr. Jacob Oaeeigan, Jr.,
“ Dear Sib,—Inclosed you have a copy of my contract with you, no part of which has been filled. The time for performance expires on the 31st of this month. As I wish the coal, although it is too late to forward it within the time called for in the contract; still, if you will deliver me the coal forthwith, I will receive it as a fulfilment on your part, otherwise I must hold you responsible. Please to let me hear from you by return of mail, without fail, and let me know what you will do about it.
“ J. Selby West.”
“ Phtladelfhia, Hovember 4th, 1846.
“ Mr. J. Selby West, Hew York:
“Dear Sir,—Your note of October 28th is received. As the contract made with you called for you to notify me where the coal was to be landed, I have waited and' waited for such
p. 279in moving that a nonsuit be entered, insisted upon the following points and authorities i I. The only evidence furnished of the contract alleged is the paper signed by Buckman. It does not appear even that plaintiff assented to it until October, 1846, much less that he ever contract
notice from you, knowing your means were so limited you would not want any of it stored.
“ The coal has been ready and waiting such notice from you. I am certainly a little surprised, at this late day, to receive such a note from you. I had come to the conclusion that you did not want the coal. All whom I sell to in the same way notify me regularly how they want it shipped, and at what pier to land it.
“ Yours respectfully,
“Jacob Carrigau.”
The plaintiff then proved that the price of coal in the city of New York was in August, 1846, $5 10 per ton; in September, $5 20; and in October, $5 42; and on the 1st of November, $5 62. The defendants offered no evidence, but moved for a nonsuit on various grounds. The motion was denied by the judge, reserving the right to afterwards grant a nonsuit, if one ought to have been granted at the trial. The court instructed the jury that the plaintiff was entitled to the difference between the contract price and the market price at the close of the month. To which instruction the defendant excepted.
And the court further charged that the jury might also allow interest on that difference.
To which instruction the defendant’s counsel also then and _ there excepted.
The jury found a Verdict for the plaintiff for $208 33, as damages for not delivering coal, and added thereto the sum of $23 51 for the costs on issuing the attachment.
The- court then directed a verdict for the plaintiff to be entered for $231 84, subject to the opinion of the court on a case, with liberty to enter a nonsuit.
Either party to be at liberty to turn the case into a bill of exceptions.
H. S. Dodge,
p. 280ed to take the coal. The proof, therefore, shows an offer or promise -without mutuality, or any consideration in point of fact. (Chitty Contracts, p. 15, 16, &c.; Addison, do. p. 26, &c.; Egerton v. Mathews, 6 East. 307; Lees v. Whitcomb, 5 Bing. 34; Sykes v. Dixon, 9 Ad. & E. 693; Utica & Schenectady R. R. Co. v. Brinckerhoff, 21 Wend. 139 .) 2. The word “agree” does not import a consideration. (Newcomb v. Clark, 1 Denio, 226 ; Bennett v. Pratt, 4 Id. 275 .) 3.. Although it maybe construed as the promise of both parties, when both sign the same paper. (Barton v. McLean, 5 Hill, 256 ; Eno v. Woodworth, 4 Comst. 240;) but not where one party only executes. (Payne v. Ives, 3 D. & R. 664; 2 C. M. & R. 51.) H. The same objection is fatal, if a consideration were proven extrinsically, because the writing does not express it. ; HI. The memorandum is not sufficient, because it is not the undertaking of Carrigan, but of Buckman. At least it is equivocal ; and parol evidence only can determine the ambiguity, which is inadmissible. (Moss v. Livingston, 4 Comst. 208; Fenly v. Stewart, 10 Leg. Obs. 49.) IY. There was no evidence whatever furnished of plaintiff’s readiness and willingness to receive the coal, except his offer in the letter of Oct. 28th, when it was too late; and this offer is rather evidence that he was not ready before October. The third, sixth, ninth, and tenth pleas deny this allegation, and plaintiff was bound affirmatively to prove it. (Topping v. Root, 5 Cowen, 404; Coonley v. Anderson, 1 Hill, 519 .) And in this case he could not prove it, without proving also that he gave the notice where to deliver. (Cook v. Ferrat's Exr. 3 Wend. 285 .) Y. The plaintiff was not entitled to recover, without proof that he had named and directed the piers for delivery as stipulated. The only proof of this allegation (which is denied in the second and eighth pleas) is the evidence of some conversation with Buckman in October. But no proof was offered that Buckman.
I. For although by the statute of frauds, Carrigan might be charged, although the plaintiff had signed no memorandum, yet there must be shown such a contract as would have bound the ‘ plaintiff (if he had signed a note of it), and the consideration must appear in the memorandum of Carrigan.
p. 281was agent to deliver the coal or receive notice ; and notice in October was too late. 1. The contract was entire; Carrigan was not bound to execute such part as plaintiff selected, and plaintiff was bound to give notice before the first of August, as to all the deliveries, so that Carrigan might exercise his right to make delivery, at any time in each month. (Topping v. Root, 5 Cowen, 404; Goodwin v. Holbrook, 4 Wend. 377 ; Vyse v. Wakefield, 6 M. & W. 442; Affd. 7 Id. 126; Rae v. Hacket, 12 Id. 724; Harrison v. Great Northern Railway Co., 8 Law and Eq. R. 469.) 2. As to necessity of notice of an act to be done by the plaintiff, to acquire a right, and the distinction from cases where defendant has to tender in discharge of a duty, vide Notes to Lent v. Radelford, 2 Am. L. C. 53 , &c.; Birks v. Trippet, 1 Saund. 32; Douglass v. Howland, 23 Wend, 49 . VI. The court erred in the instructions excepted to. The plaintiff ought to be nonsuited, pursuant to the reservation in the case. insisted that the plaintiff was entitled to retain the verdict upon the following grounds: I. 1. That the paper given in evidence shows a contract. It says, “I agree,” (not “I propose”) to deliver, &c. 2. Hie acceptance of the agreement by the plaintiff made it obligatory on both parties. (Roget v. Merritt, 2 Caines, 117; Ballard v. Walker, 3 J. Cas. 65; Opinion of Judge Kent.) 3. That a contract was made, not merely proposed, is shown by the letter of Carrigan; and that such a fact may be proved by letters or other evidence out of the memorandum required by statute, vide Allen v. Bennett, 3 Taunt. 169: Saunderson v. Jackson, 2 Bos. & Pul. 238; Gale v. Nixon, 6 Cowen 445. II. The contract was sufficiently executed to conform to the requirements of the Statute of Frauds. 1. The statute does not require the note or memorandum to express the consideration. (2 R. S. 136, § 3.) The statute is similar to that of 1813, and the English statutes. (1 R. L. 79, § 15; 29 Oh. 2 C. 3 , § 17.) The last statute has not changed the law. (2 Kent. Com. 510, 511; note c.) The rule under this statute has been settled by
H. Brewster, contra,
p. 282an unbroken line of decisions. (Egerton v. Matthews, 6 East. 407: Allen v. Bennett, 3 Taunt. 169; Western v. Russell, 3 Ves. & B. 192; Ballard v. Walker, 3 Johns. Cas. 60 ; Saunderson v. Jackson, 2 Bos. & Pul. 238; Roget v. Merritt, 2 Caines, 117; Russell v. Nicoll, 3 Wen. 112; Clason v. Bailey, 14 Johns. 484 ; Davis v. Shields, 26 Wen. 341.) I also refer to the following elementary works: Story on Cont., Section 783 : Long on Sales, 54; 2d Stark. Ev. 356. 2. The contract shows on its face that Carrigan is the contracting party, and Buckman a mere agent. (Rathburn v. Budlong, 15 John. 1 ; Long v. Colburn, 11 Mass. 97 ; Ballow v. Talbot, 16 Id. 461; N. E. Ins. Co. v. De Wolf, 8 Pick. 56 ; Hale v. Woods, 10 N. H. 470 ; Hovey v. Magill, 2 Conn. 680 ; Wilkes v. Back, 2 East. 142; 2 Wend. 485 ; 6 Howard P. R. p. 1.) 3. If the terms of the contract were equivocal, the question should have been submitted to the jury. HI. The plaintiff commenced proving that he kept a coal-yard and had plenty of room to, and did store coal, at the time this was to be delivered, and was stopped by the court, and the fourth obj ecti on ought not to prej udice the party now. But the plaintiff was not bound to give proof of his readiness because Carrigan was first to perform on his part. The plaintiff had an option of three months’ credit, and this court at a general term held that the plaintiff was not bound to exercise this option until the delivery. And also, by the very terms of the agreement, it was cash after delivery,' or a credit of three months. IY. The plaintiff was under no obligation to give notice to Carrigan at what piers he would receive the coal, until Carrigan had the coal ready and requested such information. 1. It was Carrigan’s duty to seek the plaintiff and ask his directions. (La Farge v. Rickert, 5 Wen. 187; Lush v. Druse, 4 Id. 317.) 2. If the notice was required sufficient notice was given. 3. If there was any question as to the notice being in time, the defendants could have gone to the jury on that point. It was not a ground of nonsuit. Y. There is no error in the charge. Carrigan had the whole month of October in which to deliver the coal, and therefore the plaintiff had no right to abandon the contract and get his supplies elsewhere until the end of the month. As to interest,
p. 283a jury are at liberty to allow it. (Dox v. Dey, 3 Wend. 356 .) But as they did not allow interest in this case, the defendants were not prejudiced by this part of the charge.
The defendants moved for a nonsuit on the trial, and now claim that the same should be granted, because the alleged contract given in evidence was signed only by Carrigan, and did not bind the plaintiff, and was merely an offer to sell; that it was void for want of consideration, and is not a sufficient memorandum within the statute of frauds; that without extrinsic evidence it was not the contract of Carrigan, but of Buckman; that, admitting it to be the contract of Carrigan, the plaintiff could not recover, because he had not shown he was ready and willing to receive the coal and perform on his part before the 28th of October, when it was too late; that the plaintiff was bound to give notice before the 1st day of August of the place where he would receive the coal, and that there was no default until such notice was given; —at all events, that he was bound to give such notice before the 1st of each month as to all the coal to be delivered in that month, and there was no evidence of any such notice.
The objection that the memorandum was insufficient under the statute, we incline to think is not well taken. The contract is not a mere proposal, and is mutual on its face, since the price stipulated to be paid for the coal is a sufficient consideration for the promise to deliver it. Had the memorandum been expressly assented to and signed by the plaintiff, there can be no doubt but he would have been bound, and a contract sufficiently clear, and with an adequate consideration expressed, would have been made out.
It was contended, that the mere receipt by the plaintiff of the agreement, or the acceptance of it by him, was alone sufficient to make it operative and binding upon both parties. This may well be doubted; but, admitting the proposition to be correct, the material and vital question remains to be considered—namely, whether notice ought not to have been given by the plaintiff to Carrigan of the time and place, when and where, he wished the coal to be delivered. As the city of
p. 284
Hew York was the residence of the plaintiff, it is a presumption of law that it was contempfated that- the coal was to be delivered ,in this city; but at what wharves or piers the delivery was to be made could not be known to C¿irrigan, without notice from the plaintiff, and this notice, by a reasonable construction of ‘his contract, w.e think he was bound to give. The promise of Carrigan was to deliver the coal at such piers as the plaintiff should direct; and until this direction was given—in other words, until the piers were designated by a previous notice—we ■ do not see how the obligation to deliver could arise or attach. Various reasons might be given tending to show why it might be important to Carrigan to know in'advance the precise point to which vessels or barges laden with this coal should be taken on their arrival at this port. But whether the information was, or was not, important to be given, the terms of his agreement required it to be given, and, until it was received, imposed upon -him no obligation to act. The only proof relied on to show that the proper notice was given was that of a conversation between plaintiff and Buckman, who had made the contract, and which the witness thinks was in one of the months' of August, September, or October, but is not certain as to which. It does nót appear that Buckman was. Carrigan’s agent for the delivery of this coal, and, if he had been, this notice was too late. The contract was to deliver in about equal quantities in each month, and the agreement was signed on the 16th April, three and a half months before any coal was to be delivered. The contract was entire, and a fulfilment of it required the delivery of the thousand tons, in about equal quantities, in each of the months of August, September, and October. The notice required should, at all events, have been given a sufficient time before the month of August, so as to have enabled Carrigan to comply with the delivery of the one6third in that mOhth. But as each party was to take the chance of a rise and fall of the market, the plaintiff could not be compelled to take or Carri- ’ gan to deliver the' whole coal in any one month, nor any part thereof, unless in about equal quantities in each month. On the 28th of October, three days before the time fixed for the last delivery, the plaintiff incloses to Carrigan a copy of the
p. 285
contract, and demands its fulfilment. It would seem from the letter of Carrigan put in evidence by the plaintiff, that this was the first notice which he had received, and that he had come to the conclusion—and a very reasonable one under the circumstances—that the plaintiff did not want the coal, and had abandoned the contract. It was not necessary for plaintiff to have proved on the trial his readiness and willingness to pay for the coal, because by the very terms of the agreement he had an election of a credit for three months. He proved that he was a coal dealer, and had a coal-yard in the city of New York at the time, and this probably is sufficient evidence of his readiness to receive it, had he given the requisite notice. But it is said that the plaintiff was under no obligation to give notice to Carrigan at what piers he would receive the coal, until Carrigan had the coal ready, and requested such information, and that it was Carrigan’s duty to seek the plaintiff and ask his directions. The cases of La Farge v. Rickert ( 5 Wend. 181 ) and Lusk v. Druse ( 4 Wend. 317 ) are relied upon. They establish this proposition only—that, when a party has a duty to discharge or an obligation to perform, then he must seek the person to whom the duty or obligation is due, when no place is fixed for its performance, and make a tender. The tenant who has rent to pay, or the obligee in a bond, if no place of payment is named, must seek the landlord or the obligor at his usual residence. There is no analogy between those cases- and the present. If Carrigan had wished to charge the plaintiff on the supposition that he, the plaintiff, was bound by the contract to accept the coal, it would have been probably necessary for Carrigan to have sought out the plaintiff, and asked his directions, and to have offered to deliver the coal. But this admission does not at all affect the truth of the proposition, that in order to put Carrigan in default by creating an obligation on his part to deliver the coal, a designation by a previous notice of the places at which the delivery should be made, was indispensable; the giving this notice was a condition precedent, the fulfilment of" which the plaintiff was bound to prove. No proof of the fact was given on the trial that in our judgment could properly be submitted to the jury, and consequently the motion for a non-
p. 286
suit then made ought to have been granted. According to the reservation in the case, we have power to grant it now? and we accordingly direct that a judgment of nonsuit, with costs to the defendants, be now entered.
Cases cited
- Utica & Schenectady Railroad v. Brinckerhoff 21 Wend. 139 p. 280
- Goodwin v. Holbrook 4 Wend. 377 p. 281
- Clason v. Bailey 14 Johns. 484 p. 282
- Dox v. Dey 3 Wend. 356 p. 283
- Barretto v. Snowden 5 Wend. 181 p. 285