Summary
In Central Shoe, the court held that, in order to satisfy the statute of frauds, a written contract need not be in one writing, but may be in several writings necessarily connected with each other.
Summary of this case from Eagle Management, LLC v. ParksOpinion
No. 29302.
March 23, 1931.
1. FRAUDS, STATUTE OF. Telegrams and letter held sufficient memorandum to bind guarantor for payment of account ( Code 1930, section 3343).
Wholesaler received written order for shoes from retail company, and on receipt of order wrote retail company letter requesting that its president guarantee payment of bill, and later sent telegram to president asking him to wire guaranty order, and president replied, "I guarantee order 244 for 26 dozen," and shoes were immediately shipped. Thereafter retail company ordered more shoes, and wholesaler wrote to president of retail company, requesting that he confirm salesman's statement to effect of guaranteeing payment at maturity date of orders received, and president returned letter with notation on bottom, "I will comply with your request as stated above."
2. FRAUDS, STATUTE OF.
Memorandum of promise to answer for debt of another need not be in one writing (Code 1930, section 3343).
3. FRAUDS, STATUTE OF.
If paper signed by party sought to be charged makes such reference to another writing that, construing them together, all terms of bargain are expressed, it is sufficient, and parol evidence is admissible to identify paper referred to and apply reference (Code 1930, section 3343).
4. EVIDENCE. Guarantor's testimony contradicting terms of contract to guarantee payment of account as embodied in telegram and letter held incompetent.
Guarantor was permitted to testify that there was no purpose on his part to guarantee payment of account, but only to certify to authority of manager for firm of which guarantor was president to buy shoes ordered for firm.
APPEAL from circuit court of Lawrence county; HON. J.Q. LANGSTON, Judge.
Fred M. Bush, of New Hebron, and G. Wood Magee, of Monticello, for appellant.
The telegrams and letters introduced in evidence can have but one meaning, and that is that appellee guaranteed the payment of the account sued on. The appellee should not be heard in a court of law to contradict the plain and unequivocal meaning of his letters and telegrams.
The appellee himself, said that he based his claim of nonliability on the meaning of the letters and telegram. This being true, nothing was left to the trial court except to instruct the jury on the meaning of these instruments.
The testimony of the defense in the lower court alters or contradicts the written instruments upon which the appellant relies to establish appellee as guarantor of the account involved in this suit. It was inadmissible and the verdict upon which it is based must be set aside.
The correspondence and the telegrams taken together reveal beyond the shadow of a doubt the intention of the parties thereto. If the appellee, was misinformed as to the nature of the letters and telegrams that he was signing for the purpose of obtaining the credit for the company of which he was president he was so misinformed by his agent and employee, and not by the appellant.
E.B. Patterson and C.E. Gibson, both of Monticello, for appellees.
The sending of the telegram was not as a guaranty of the account but as a guaranty of the order or for the purpose of confirming the authority of the clerk, who gave the order.
The appellant also relied upon a letter introduced in evidence, but it must be borne in mind that the evidence is also conflicting as to the intention of the parties — that there was not a meeting of the minds, even if it is a guaranty, then for how much, for what amount?
If telegram in question indicates that the appellant was desirous of having the defendant to personally guarantee the payment of its bills, it is clear from the evidence of the appellee, that he did not understand that their transaction was that of a personal guaranty to the appellant.
The issue of fact raised by the pleading and evidence in this case was questions for the jury to pass upon under proper instructions of the court.
Appellant brought this action in the circuit court of Lawrence county against the appellee J.P. Conn Co. on an itemized sworn account, and against appellee J.P. Conn on an alleged guaranty for the payment of the account for shoes sold by appellant to the appellee J.P. Conn Co. There was a judgment against J.P. Conn Co., which concern was bankrupt, for the amount sued for, and a verdict and judgment in favor of J.P. Conn. From the latter judgment, appellant prosecutes this appeal.
J.P. Conn Co. was a corporation engaged in the Mercantile business at Monticello, in Lawrence county. J.P. Conn was president of the company. J.Z. Wilson was in charge of the business, and was the purchaser for the company; J.P. Conn having nothing to do with the buying. Appellant is a St. Louis concern, engaged in the wholesale shoe business. In May, 1929, appellant, through one of its traveling salesmen, sold J.P. Conn Co. a bill of shoes. The purchase was made by Wilson, the manager for J.P. Conn Co., being evidenced by a written order, describing the shoes and prices. On receipt of the order, appellant investigated the financial condition of J.P. Conn Co., and, finding it unsatisfactory, wrote them a letter, dated May 15, 1929, to that effect, requesting that J.P. Conn guarantee the payment of the bill. On May 17, 1929, appellant telegraphed J.P. Conn as follows: "Will you please wire us guaranty order 244 for 26 dozen. Thanks." On May 19, 1929, J.P. Conn replied to this telegram as follows: "I guarantee order 244 for 26 dozen." Thereupon the shoes so ordered were immediately shipped to J.P. Conn Co.
Shortly prior to August 13, 1929, J.P. Conn Co. ordered another lot of shoes from appellant, consisting of twenty-four dozen pairs; and, as in the first order, the shoes and prices were listed. On August 13, 1929, appellant wrote to J.P. Conn, requesting that he guarantee this order. In that letter appellant stated that it had just received an order through its representative, Mr. Ford, for twenty-four dozen pairs of shoes, to be shipped at once to J.P. Conn Co., and that with the order Ford had written that J.P. Conn would guarantee the payment of the amount of the order at the maturity date, which was October 1st. The letter requested that J.P. Conn confirm Ford's statement "to the effect of guaranteeing payment at the maturity date of orders just recently received." J.P. Conn received this letter, and returned it to the appellant, with the following written at the bottom, and signed by him: "I will comply with your request as stated above. August 15th, 1929. Yours very truly, J.P. Conn."
The question in the case is whether or not, under the statute of frauds, the telegrams and letter referred to constituted a sufficient memorandum in writing to bind appellee J.P. Conn for the payment of the account of J.P. Conn Co. sued on.
Over appellant's objection, the court admitted evidence that J.P. Conn did not intend by the telegrams and letter to guarantee the payment of the account, but only intended, as president of J.P. Conn Co., to ratify the action of Wilson in purchasing the shoes for the company.
We are of the opinion that the telegrams and letter, together with the parol evidence, were sufficient to bind J.P. Conn for the debt of J.P. Conn Co. The first section of the statute of frauds (section 3343 of the Code of 1930) provides, among other things, that an action shall not be brought to charge a defendant upon a promise to answer for the debt or default or miscarriage of another person, unless the promise or agreement upon which such action may be brought, or some memorandum or note thereof, shall be in writing, signed by the party sought to be charged therewith, or some person by him thereunto lawfully authorized in writing.
The written memorandum or contract is not required by the statute to be in one writing; it may be in several different writings necessarily connected with each other. If a paper signed by the party sought to be charged makes such reference to another writing as that, construing them together, all the terms of the bargain are expressed, it is sufficient under the statute, and parol evidence is admissible to identify the paper referred to and apply the reference. Wilkinson v. Taylor Mfg. Co., 67 Miss. 231, 7 So. 356; Fisher v. Kuhn, 54 Miss. 480; Rector Provision Co. v. Sauer, 69 Miss. 235, 13 So. 623.
Here we have the written orders of J.P. Conn Co. for the shoes, setting out in detail the number of pairs ordered in the prices and the dates of the orders. Then there are the telegrams and letter referred to, by the terms of which J.P. Conn guaranteed the payment of the orders. We think the telegrams and the letter and the orders for the shoes point to each other with sufficient certainty. But, in addition to the evidence to that effect which they bear on their face, J.P. Conn testified in the case, and admitted that the telegrams and the letter referred to the account sued on; but, as stated, he testified that there was no purpose on his part to guarantee the payment of the account, but only to certify to Wilson's authority to buy the shoes for J.P. Conn Co. The latter testimony was clearly incompetent, because it went to contradict the plain terms of the contract, as embodied in the telegrams and the letter. Appellant's request for a directed verdict against J.P. Conn should have been granted.
Reversed, and judgment here for appellant.