Sall v. Mueller Brass Co. , 361 Pa. 449 ( 1949 )

The question presented is whether or not, in a proceeding of foreign attachment in assumpsit, the averments in plaintiffs' complaint come within the provisions of Section 4 of the Pennsylvania Sales Act of May 19, 1915, P. L. 543; 69 PS, 42 which provides as follows: "A contract to sell or a sale of anygoods . . . shall not be enforceable by action unless . . .some note or memorandum in writing of the contract or sale besigned by the party to be charged. . . ." The court below sustained preliminary objections to the complaint in the nature of a demurrer. This appeal followed.

Plaintiffs aver in their complaint that they orally agreed to sell and defendant agreed to buy a quantity of brass primers (scrap) at a set price; that at the same time, plaintiffs orally agreed to purchase from defendant a like amount of brass rod; and that the brass primers were shipped to defendant but defendant refused to accept them. This action in assumpsit was instituted for breach of contract. In their complaint, plaintiffs rely upon one letter and two telegrams to bring themselves within the requirements of the Statute. One is a telegram dated June 2, 1947, sent by theplaintiffs to defendant, which reads: "Your Mr. Parker did not call today. Please enter our order as per our conversation. We sell you approximately 85 tons primers at 14 1/2¢ shipping: We to take back like amount of rod at your current carload price delivered our plant. (Plaintiffs)" (emphasis supplied). A letter dated June 13, 1947, sent by plaintiffs to defendant reads: "This will confirm the arrangement we made with your Mr. Lewis whereby we are to ship you approximately 170,000 pounds of primers for which your company is to pay us 14 1/2¢ per pound shipping point, and we in turn are to receive from you a like amount of brass rod free machining at the distributor'sprice delivered. . . . Yours very truly, (Plaintiffs)." (emphasis supplied.) On June 16, 1947, defendant sent plaintiffs the following telegram: "Railroad report car scrap arrived this morning we cannot accept car until complete details and order for brass rod have been received by sales department. (Defendant)."

Defendant contends in its preliminary objection that the complaint was founded upon an alleged oral contract to sell goods without a written note or memorandum thereof as required by Section 4 of the Sales Act, supra.

Judge CRUMLISH, who wrote the opinion of the court below, correctly laid aside plaintiffs' telegram of June 2 and letter of June 13 because they constituted no part of a note or memorandum in writing "signed by the party to be charged", viz: the defendant. The court held that the telegram of June 16 was the only writing signed by defendant and neither it nor the other two writings bore any connecting internal reference one to the other. The first two papers are merely statements byplaintiffs — not by defendant. Even if an undisclosed but actual relation was orally proven to have existed between the three papers, nevertheless the writings themselves do not establish that defendant signed any note or memorandum evidencing the existence of an oral agreement.

In Brister Koester Lumber Corporation v. American LumberCorporation, 356 Pa. 33, 50 A.2d 672, Mr. Justice JONES said, p. 39: "The required memorandum for such purposes need not be a single writing, entire within itself; it may consist of several writings; and, if they bear connecting reference one to the other or have even an undisclosed but actual relation, which oral evidence may be used to show, they may be sufficient, when taken together, to supply the statute's requirement for a writing: Manufacturers Light Heat Co. v. Lamp, 269 Pa. 517,520, 112 A. 679. See also Title Guaranty Surety Co. v.Lippincott, 252 Pa. 112, 117, 97 A. 201."

But even regarding the two telegrams and one letter as a single document, they still are not sufficient to constitute a memorandum under the statement of the alleged oral contract. InBrister Koester Lumber Corporation v. American LumberCorporation, supra, p. 39, it was also said: ". . . whether thememorandum relied upon is a single document or consists ofseveral related or connected writings, the complete terms of avalid contract must be ascertainable therefrom with certaintyand there must also be disclosed therein an intention on thepart of the vendee to be bound by the asserted contract." (emphasis supplied). See also: Manufacturers Light Heat Co.v. Lamp et al., 269 Pa. 517, 520, 112 A. 679; Franklin SugarRefining Co. v. Howell, 274 Pa. 190, 200, 118 A. 109; FranklinSugar Refining Co. v. John et al., 279 Pa. 104, 109,123 A. 685; Vitro Manufacturing Co. v. Standard Chemical Co.,291 Pa. 85, 95, 139 A. 615; Lippincott v. Stringer, 80 Pa. Super. 162,166; Stein v. Camden Fibre Mills, Inc., 148 Pa. Super. 348,351, 25 A.2d 741. A mere indication of anincomplete agreement is not sufficient: Franklin Sugar RefiningCo. v. John et al., supra, p. 109; Brister Koester Lumber Corporation v. American LumberCorporation, supra, p. 40.

The terms of the alleged oral agreement are not ascertainable from the letters and telegrams. In plaintiffs' telegram of June 2, 1947, one of the alleged terms of the oral contract is stated in these words: "We to take back like amount of rod at your current carload price delivered our plant." (emphasis supplied). In plaintiffs' letter of June 13, 1947, are these words: ". . . we in turn are to receive from you a like amount of brass rod free machining at the distributor's price delivered." (emphasis supplied). Thus there are inconsistenciesin plaintiffs' own letters which give rise to incomplete and uncertain terms in the purported contract. These writings disclose no intention on the part of the defendant to be bound by the asserted oral contract.

The telegram of June 16, 1947, is the only writing signed bydefendant. No words in this telegram indicate that defendant intended to be bound by the oral contract alleged by plaintiffs. Nor can we find any words in any of the writings to show that defendant admits the existence of the alleged oral agreement. On the contrary, defendant by its telegram inferentially negatived the existence of any purported agreement "until complete details and order for brass rod have been received by sales department."

Plaintiffs' contention that the contract relating to scrap is severable lacks merit. If the alleged oral agreement is treated as entire, and one part is outside the Statute, the whole contract is unenforceable: Byrne's Estate, 122 Pa. Super. 413,186 A. 187. If it is treated as severable, nothing indefendant's telegram indicates an intent to be bound.

We have treated this appeal as from the judgment entered on the date on which it was actually entered and not from thenunc pro tunc date.

The judgment is affirmed.