Harby v. Wilson , 106 S.C. 7 ( 1916 )

October 9, 1916. The opinion of the Court was delivered by The evidence, stated most strongly for plaintiff, shows that on August 23, 1913, he had a conversation with defendant in which defendant agreed to sell him 200 bales of cotton, and that all the terms of sale were agreed upon; that he was to reduce the agreement to writing and take it to defendant to be signed by him; that he did prepare a written contract which was in accord with their oral agreement, and signed it and sent it to defendant by the afternoon mail of the same day, but defendant left the city that afternoon, and did not receive it until he returned, on August 29th. In the meantime the price of cotton had advanced. On August 30th defendant returned the contract to plaintiff in a letter in which he stated that he did not care to sign this contract. Plaintiff then saw defendant and offered to allow him to modify the contract, so as to meet his obligations to it, and left it with him. On September 3d defendant wrote plaintiff another letter in which he returned the contract and refused to sign it, or to sign any modified contract. Plaintiff relied upon the contract as prepared by him and this letter, both of which will be reported, together with the oral testimony, the substance of which has been stated, to take the case out of the statute of frauds.

The writings together do not constitute such note or memorandum of a contract, signed by the party charged, as will satisfy the statute. It is not competent to prove by oral testimony any of the essential elements of a contract which the statute requires to be in writing. Such testimony is competent to connect different writings, but the writings must themselves contain all the essential elements of the contract, and the party to be charged must acknowledge in writing that they do. LouisvilleCo. v. Lorick, 29 S.C. 533, 8 S.E. 8, 2 L.R.A. 212.

In the case cited defendant gave plaintiff's salesman an order for goods, which was entered by the salesman in his memorandum book. The order as entered contained all the elements of the contract, but it was not signed by defendant. Subsequently, and after the goods had been shipped, defendant wrote plaintiff: "Don't ship paints ordered through your salesman." It was held that it was competent to prove by parol testimony that the letter referred to the order which had been entered on his book by the salesman, and, further, that the two together constituted such note or memorandum of the contract, acknowledged in writing by the party charged, as would satisfy the statute.

But in this case defendant's letter not only does not acknowledge that the contract proposed by plaintiff contained all the elements of their oral agreement, but his objection to it and refusal to sign it implies that, at least according to defendant's understanding of it, it did not. At any rate, defendant has not admitted in writing that it did. That being so, there was no competent evidence to prove the contract alleged, and the nonsuit was properly granted.

Judgment affirmed.