Opinion
No. 29914.
March 28, 1932.
1. SALES.
Articles sold must be described in written sale contract with such certainty that they may be properly identified, at least by aid of extrinsic evidence.
2. SALES.
Description of jewelry in written order merely by quantity, price, and names of articles held insufficient.
3. EVIDENCE.
Parol evidence is inadmissible to describe subject-matter of written sale contract containing substantially no description thereof.
APPEAL from circuit court of Newton county. HON. D.M. ANDERSON, Judge.
O.B. Triplett, Jr., of Forest, for appellant.
The order form in itself is full, complete and definite in its description of the merchandise ordered.
Price v. Atkinson, 117 Mo. App. 52, 94 S.W. 816; Price v. Weisner, 83 Kan. 343, 111 P. 439; Price v. Stipek, 39 Mont. 426, 104 P. 195; 55 C.J. 195, 406 and 408.
If the number and quality of the article ordered are given, the law will supply a reasonable price.
55 C.J., p. 224, section 181.
If the quality and price are given, the law will not allow the contract to fail "unless it is impossible from the terms of the contract or means provided to ascertain what quantity the parties have contracted to buy or sell."
55 C.J., p. 195, sec. 149.
If the quantity and price of the goods or articles ordered is given, the quality will be implied by a reasonable construction.
The contract must also be definite and certain as to quality of the goods or articles, except where they are sold without agreement as to quality.
55 C.J., p. 195, section 148.
Where a purchaser signs a contract containing the statement that no outside representations have been made and that it contains all the agreements of the parties, such purchaser cannot show statements made by the agent with whom he was dealing which are not embraced in the written contract and his failure to read the contract will not change the rule.
J.B. Colt Co. v. Odom, 101 So. 853, 136 Miss. 651; J.B. Colt Co. v. McCullough, 105 So. 744, 141 Miss. 328; Stevens v. Stanley, 121 So. 814, 153 Miss. 801; Fresno Home Packing Co. v. A.J. Lyon Co., 53 So. 585, 98 Miss. 228; Tropical Paint Co. v. Mangum, 125 So. 248, 155 Miss. 896; Orgill Bros. Co. v. Polk, 124 So. 649, 155 Miss. 492; Perrault v. White Sewing Machine Co., 127 So. 271, 157 Miss. 167; Brenard Mfg. Co. v. Sumrall, 104 So. 160, 139 Miss. 507; 22 C.J., p. 1217.
R.H. Day and J.V. Carr, both of Decatur, for appellee.
The rule is well settled that the memorandum must contain the substantial terms of the contract expressed with such certainty that they may be understood from the contract iself, or some other writing to which it refers, without resorting to parol evidence.
Waul v. Kirkman, 27 Miss. 823.
The order is so vague and indefinite as to the description of the articles described therein that it would take parol testimony to explain just what kind and quality of goods were ordered, and what kind of goods were shipped.
The order does not contain sufficient descriptions of the goods to constitute a binding contract and avoid the statute of frauds.
Kerwin v. Biglane, 110 So. 232; Scherck v. Moyse, 94 Miss. 259, 48 So. 513; Willis v. Ellis, 98 Miss. 197, 53 So. 498; Fisher v. Kuhn, 54 Miss. 480; McGuire v. Stevens, 42 Miss. 724; Giglio v. Saia, 140 Miss. 769, 106 So. 513; Sturm v. Dent, 107 So. 277.
Appellee gave a written order to appellant purporting to be for the purchase of an assortment of jewelry. When the jewelry, which appellant asserted to be that which conformed to the order, was shipped, appellee upon examination of the shipment refused to accept delivery, on the ground that the articles did not correspond to the samples which were exhibited at the time of the signing of the order. Appellant thereupon sued appellee on the written contract, that is to say, on the aforesaid written order, and the trial resulted in a judgment for the defendant therein.
Appellee, the defendant in the trial court, raised the point that the alleged order was not a contract, but was in effect only an order blank. To disclose the facts upon which the point is made, we will set forth some of the several items of the order. The only descriptions of the goods ordered are, for instance, as follows:
Brooeches 1/3 Doz. Fancy Assorted Per Doz. ........................ $ 3.60 Am't $1.20 Bracelets 1/4 Doz. Fancy Selected Per Doz. ........................ $13.20 Am't $3.30 Bar Pins 1/4 Doz. Assorted Per Doz. ........................ $ 1.80 Am't $ .45 Emblems 1/6 Doz. Charms Per Doz. ........................ $24.00 Am't $2.00 Men's Chains 1/4 Doz. Assorted Per Doz. ........................ $ 7.20 Am't $1.80
There are about twenty-five different classes of jewelry, but, so far as the particular descriptions were concerned, the five above mentioned are illustrative of the entire order. No catalogue numbers are given, nor were other descriptive references made. It at once appears, therefore, that the written order does not show either on its face or by means of any descriptive reference whether, for instance, the articles were to be of gold or of silver, or whether solid or plated. In fact, only the quantity and price are given, and the description of the articles, save that they are to be brooches, bracelets, bar pins, emblems, men's chains, etc., is entirely wanting.
In a suit upon a written contract for the sale of goods, it is essential that the goods or articles, which are the subject-matter of the sale, shall be described or designated in the contract with such certainty or definiteness as will enable them to be properly identified. At least, the description must be such as that, by the aid of extrinsic evidence, the identity of the property is capable of being rendered reasonably definite and certain. 55 C.J. 194. But the rule of extrinsic evidence cannot be made to apply to the purported contract here, for so to attempt would be to supply essential elements in the description rather than merely to clarify or explain a description, or a reference for description. In other words, when there is substantially no description, parol evidence is not admissible to make a description; or, as it has been expressed, parol evidence cannot be admitted first to describe the subject-matter of the contract and then apply the description. 22 C.J., pp. 1271, 1272.
Affirmed.