McElroy v. Seery

Robinson, J., delivered the opinion of the Court. On the 18th of September, 1882, T. Francis Hall, trading as T. Francis Hall & Co., ordered through one Richards, salesman for the appellee, a bill of merchandise, amounting to 8364,00. The goods were sold on a credit of sixty days to be delivered in Baltimore. At the time the order was given, the following memorandum in writing was made, by Richards: “ T. F. Hall & Co., 88 South Charles St., Baltimore, Maryland.” Then follows an itemized statement of the goods thus ordered and the prices agreed to be paid for the same.

Richards says the memorandum was made in order that the appellee might fill the order, and for no other purpose. It was neither signed by him nor by Hall. On the same day Richards mailed the order directed to the appellee at Providence, Rhode Island, by whom it was received on the 19th of September. On the 20th of September Hall made an assignment to the appellant of all his property, ³⁹⁶ rights and credits for the benefit of his creditors.

On the 22nd of September the appellee shipped the goods in controversy by express, consigned to T. Francis Hall & Co., 88 South Charles Street, Baltimore, and on the 25th of September the appellant being notified by the Express Company of their arrival, he directed the goods to be delivered to Higgins, Cobb & Co., auctioneers, by whom they were sold together with the stock^in trade of Hall & Coat auction. During the month of October, 1882, the appellant notified the appellee of the assignment to him from Hall & Co., and requested him to forward his claim; and on the 31st of October the appellee directed his bookkeeper to make up and forward a statement of his claim, which was accordingly done and was received by the appellant about the 1st of November. The appellee subsequently sued the appellant in trover to recover the value of the goods. Two questions arise in this case : First.

Was there a note or memorandum in writing of the contract of sale within the 17th section of the Statute of Frauds? By the common law all that was required to give validity to a sale of personal property, whatever may have been the amount or value, was the mutual assent of the parties to the contract. This once established by evidence, either verbal or written, that the one should transfer the absolute property in the thing to the other for a money price, the contract was completely proven and binding on both parties. To prevent Frauds and Perjuries, however, the 17th section of the Statute of Frauds provided that no contract for the sale of goods, &c., of the value of ten pounds or upwards should be valid, except the buyer shall receive and accept part of the goods so sold, or give something in earnest to bind the bargain or in part payment, or that some note or memorandum in writing of the said barg’ain be made and signed by the parties to be charged or their agents thereunto lawfully authorized. ³⁹⁷ It is essential, therefore, that the written memorandum should show who are the contracting persons.

Not only who is the person to be charged, but also who is the person in whose favor he is charged, for it takes two to make a bargain. This was expressly so decided in Champion, et al. vs. Plummer, 4 Bos. & Pul., 252, where the plaintiff by his agent wrote down in a memorandum book the terms of a verbal sale to him by the defendant, and the defendant signed the writing, but the words were simply “ Bought of W. Plummer, &c.,” with no name of q.he person who bought. Sir Jambs Mansfield, C. J., said : “ How can that be said to be a contract, or memorandum of a contract, which does not state who are the contracting parties P By this note it does not at all appear to whom the goods were sold. It would prove a sale to any other person as well as to the plaintiffs.” And again in Allen vs. Bennet, 3 Taunt., 169, the agreement was written in a book belonging to the plaintiff and was signed by the defendant, but the plaintiff’s name was not in the book and was not mentioned in the memorandum, and it was held that the memorandum was insufficient.

Other cases might be cited, but this is unnecessary. Cooper vs. Smith, 15 East, 103, and Jacob vs. Kirk, 2 Moody & Rob., 222. In this case the memorandum was