Frank v. Miller

Bartol, O.' J., delivered the opinion of the Court. This suit was brought by the appellees upon an alleged agreement made by the appellant to pay a debt due them from Katzenberg & Co., of Selma, Alabama. The instructions given to the jury, by the Superior Court, at the instance of the plaintiffs, in granting their ⁴⁵⁹ two prayers, place their claim to recover on two alternative grounds. First. — Considering the case within the 4th section of the Statute of Frauds, they maintain that the paper-writing signed by the defendant and sent by him to the plaintiffs, on the 18th day of February, 1871, is a sufficient memorandum of the agreement under the Statute.

Second. — That there is sufficient evidence in the case, to be submitted to the jury to establish an original promise binding on the defendant, made upon a consideration moving to him, and thus to take the case out of the Statute. This last proposition arises on the second prayer of the plaintiffs. First. — Treating the agreement as within the Statute, is it sufficiently evidenced by the writing relied on for that purpose ? It is as follows: “If you will make it in 4 notes, 3, 6, 9 and 12, IluiU settle them; 2 notes due, Frank.” It is contended on the part of the plaintiffs that this is an agreement by the defendant to pay them the amount of two notes of Katzenberg & Co., dated the 13th day of May, 1870, each for the sum of $191.37, payable to Daniel Miller & Co., one-in six, and the other in nine months after date ; provided the plaintiffs would divide the amount of the debt into four notes, payable respectively in three, six, nine and twelve months; to be signed by Katzenberg & Co., and endorsed by the defendant.

So the agreement is stated in the nar. and in the plaintiffs’ first prayer. The Statute requires, in order to charge the defendant, that the “ agreement or some memorandum or note thereof shall be in writing, signed by the party to be charged, or by some person thereunto by him lawfully authorized.” That the writing here relied on, falls far short of the requirements of the Statute, seems to us to be too plain to ⁴⁶⁰ require argument or authority. It was admitted at the trial the paper was in the hand-writing of the defendant, and it was also admitted, that, “ according to mercantile usage in Baltimore, the figures 3, 6, 9, 12, in the memorandum, mean three months, six months, nine months and twelve months.” And it was proved that the paper was sent by the defendant to the plaintiffs on the 18th day of February, 1871. But this admission does not materially assist the plaintiffs’ case; the memorandum is still left imperfect and altogether insufficient to prove the alleged agreement.

Without referring to other defects, there is nothing on the face of the paper to indicate the subject-matter to which it relates ; the names of Katzenberg & Go. are not mentioned, nor is there anything to show that it refers to any debt due by them to°the plaintiffs. “ 2 notes due” might, for all that appears on the paper, as well refer to notes of the defendant, or of any other person, as of Katzenberg & Co., and might be made to bind the defendant with respect to any two notes, for any arpount, if parol proof were admissible to supply such defects in the writing. It is only by parol proof the plaintiffs seek to show that the two notes of Katzenberg & Co., mentioned in the nar. were the subject-matter referred to. But such evidencé is wholly inadmissible. A contract required by the Statute to be in writing, “cannot be partly in writing and partly in parol.” Moale vs. Buchanan, 11 G. & J., 314 .

It is elementary law that “ the contract must be stated with reasonable certainty, so that it can be understood from the writing itself, without having recourse to parol proof.” 2 Kent, 511, m. To supply the defects in the memorandum, and show the subject-matter of the contract, the plaintiffs offered in evidence the two notes of Katzenberg & Co., described in the declaration ; but that was alike inadmissible; they are not signed by the defendant, nor in any manner binding upon him; no reference to them