THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Massachusetts.
The facts are set forth in the opinion of the court, and also the rulings of the Circuit Court. The bill of exceptions extended over thirty pages of the printed record.
It was argued by Mr. Goodrich, for the plaintiff in error, and by Mr. Johnson and Mr. Davis, with whom was Mr. Choate, for the defendant in error.
The points made by the counsel for the plaintiff in error, were the following:
I. The evidence before the jury was competent and sufficient to authorize them to find that the bill of parcels had been adopted, recognized, and acted upon by the defendant, as the contract between himself and the plaintiffs.
II. The bill of parcels constitutes a contract known as a bargain and sale, by force of which the title to the property passed, without delivery, without payment of the price. It purports on its face a sale in presenti.
III. The paper signed by the defendant, dated 19th September, (Record, p. 11,) is a sufficient compliance with the statute of frauds, and the first position taken, and the first instruction asked in the court below, should have been sustained.
Addison on Contracts, 80. 'It is not necessary that all the particulars of the contract should appear upon the face of the written memorandum. Any note, acknowledging the fact of the sale, mentioning the name of the vendor and the thing sold, and signed by the purchaser or his agent, will take the case out of the statute.'
Penniman v. Hartshorn, 13 Mass. 87; Egerton v. Matthews, 6 East, 307, as to the description of the goods being sufficiently certain.
Even if it should be considered essential that the particular bales and cases should be selected, this was done, and thereupon the writing attached. See Record, p. 13, letters. The first letter set apart No. 8180 to 8679. The 100 cases blue drills were set apart at the counting room of Mason & Lawrence, on 11th October.
The second letter called for No. 8480 to 8679-200 bales, thus leaving set apart, 300 bales from No. 8180 to 8479.
In considering this position and instruction, the plaintiffs relied upon their usage, to require notes upon all sales made upon credit, which was known to Goddard.
This usage was competent, as constituting a part of the contract, as one of the incidents of the credit which was given.
Hutton v. Warren, 1 Mees. & Wels. 466; Grant v. Maddox, 15 Id. 737; Syers v. Jonas, 2 Wels. Hurls. & Gor. 111. In an action for the price of tobacco sold, evidence is admissible to show that by the established usage of the tobacco trade, all sales are by sample, although not so expressed in the bought and sold notes. Tibbets v. Sumner, 19 Pick. 166.
The contract is certain as to the parties, as to the number of bales, the price per yard, so that the amount of the purchase may be computed.
It is well established that a signature, by initials, is good; but the fact, whose initials they are, must be settled by the jury, upon proof. So, also, it is submitted, that it is the province of the jury to determine the character in which the parties signed. It was for them to say whether Goddard, by signing his initials and writing underneath the provision as to credit, and that the contract as to the blues might be abandoned, if color not satisfactory to the purchaser, is or is not sufficient, and was designed by the defendant to designate himself as the purchaser. That he did so design, is apparent, also, from the fact that his name is written at the top of the paper, prior to that of any other person.
In determining this question, it is competent for the jury to look at the situation of the parties and of the property, in aid and in explanation of the paper, for the purpose of attaching or locating the paper.
Whether a party signed as a witness, or as a party, is often determined from the location of his signature upon the paper.
Higgins v. Senior, 8 Mees. & Wels. 844. It may be shown that a party, whose name does not appear upon the paper, is bound as a contracting party, where an agent signs his own name instead of that of the principal.
Why not show, upon the same principle, or infer from the paper, the character and purpose in and for which a party signs?
The provision in this paper, that the goods are to be delivered free of truckage, does not prevent the passing of the property, without and before delivery-and without payment.