source: Caselaw Access Project

author: Mr. Justice GRIER

license: Public Domain

text:
    William H. Winder, Plaintiff in error, v. Andrew D. Caldwell.
    Where a scire facias was issued to enforce a lien upon a house under the lien law of the District of Columbia, there was no necessity to file a declaration.
    Where the contract between the owner and the builder, (who was also the carpenter.) stipulated for a forfeiture per diem in case the carpenter should délay the work, the court below ought to have allowed evidence of such delay to bo given to the jury by the defendant, under a notice of set-off, and also evidence that the work and materials found and provided upon and for the building, were defective in quality and character, and far inferior in value to what the contract and specification called for.
    A master builder, undertaker, or contractor, who undertakes by contract with the owner to erect a building, or some part or portion thereof, on certain terms, does not come within the letter or spirit of the act of Congress passed March 2, 1833,' .(4 Stat. at Large 609,) entitled an Act to secure to mechanics and others, payment for labor done and materials furnished in the erection of buildings in the District of Columbia.
    This case was brought up, by writ of error, from the. Circuit Court of the United States for the District, of Columbia, holden in and for the county of Washington.
    It was an action of scire facias, brought by Caldwell against Winder, upon a claim filed under the act of' Congress ■ passed March 2,1833, entitled “An Act to secure to mechanics and others, payment for labor done and materials furnished in the erection of buildings in the District of Columbia.?’ 4 Stat. at Large, 659.
    Caldwell, in March, 1849, filed his claim in- the clerk’s office, consisting of the gross sum of $10,500, claimed-as due under a special agreement, and the further sum of $4,086 for extra work — the items of the extra work being particularly mentioned in the claim.
    Upon this claim the writ of scire facias'issued March 20, 1849.' No declaration was filed. The defendant appeared and pleaded non assumpsit, upon which issue was'joined.
    Upon the trial, the jury found a verdict for the plaintiff in the sum of $4,746, with interest from 9th March, 1849.
    Upon the trial, the plaintiff took three bills of exceptions, and the defendant, ten. The substance of them all is stated in the opinion of the court. .
    It .was argued by Mr. Davidge, for the plaintiff in error, and Mr. Bradley and Mr. Lawrence, for the defendant in error.
    The counsel for the plaintiff in error made the following points.
    I. That, under the act of 1833, the mechanics and material-men who do the work and provide the materials for the building, are entitled to the lien, and not he who merely contracts with them to do and provide such work and materials.
    1. - Because the law tolidem verbis confines thejien to those
    “ employed in furnishing materials for, or in the erecting or constructing ” the building. • 1

    2. Because the only debts secured by the law are those contracted for work done and materials furnished for the building.
    3. Because the '2d clause of the lst section of the act plainly shows that a mere contractor is not within its provisions.
    4. Because .the', contractor not being within the letter, is still less within the spirit of thé law, the object of which was to allow those whose property, whether work or materials, had been advanced upon the credit of the building, to follow that property after it had become part of the building. In the present 'case, the work and materials advanced, or a large portion of them, were not the property of- the contractor.
    5. Because if the contractor .be held within the law, the building would be subjected" to double liens and double recoveries. And, more than this, a sub-contractor, not advancing either work or materials, might, with equal justice, claim the .lien, and the property would then be'subjected to.triple liens for the.same benefit.

      6. Because the mechanics and material-men are, by the law, expressly authorized to institute proceedings against the contractor, the basis of which is, that they have found and provided the work and materials for the building.
    7. Because the law contemplates but one lien for the same work or materials, and if there be two or more, the satisfaction which the owner is entitled to, under the last clause of the 1st section could not be entered. Act of 1833, (4 Statutes at Large," p. 659); Penn. Lien Laws of. 1803, (Pamphlet L. 591); of 1806, (4 Smith’s L. 300); and of 1836, (Pamphlet L. 695); Jones v. Shawhan, 4 W. & S. 257, 264; Hoatz v. Patterson, 5 W. & S. 537, 539; Haley v. Prosser, 8 W. & S. 133, 134; Whitman v. Walker, 9 W. & S. 183, 187; Bolton v. Johns, 5 Barr’s Penn. Rep. 145, 150.
    But, further, the act of 1833 cannot be regarded as giving a lien to the • contractor in this case, unless it, an affirmative statute, without a repealing clause or negative words, be held to repeal a former law passed in pari materia, and betwéen which and the act of 1833 there is no necessary repugnancy. The act of Maryland, passed December 19, 1791, provided as follows :
    “ L And for the encouragement of master-builders to undertake the budding and finishing houses within the said city, by securing to them a just and effectual remedy for their advances and earnings, be it enacted, that for all sums due and owing, on written contracts, for the building any house in the said city, or the brickwork, or carpenters’ or joiners’ work thereon, the undertaker or workmen employed by the person for whose use the house shall be built, shall have a lien on the house and the ground on which the same is erected, as well as for the materials found by him; provided the said written contract shall have been acknowledged before, one of the commissioners, a justice of the peace, or an alderman of the corporation of Georgetown, and recorded in the office of the clerk for recording deeds herein created, within six calendar months from the time of acknowledgment as aforesaid; and if, within two years after the last of the work is done, he proceeds in equity, he shall have remedy as upon a mortgage, or if he proceeds at law within the same time, he may have execution against the house and- land, in whose hands soever the same may be; but this remedy shall be considered as additional only, nor shall, as to the land, take place of any legal encumbrance made prior to the commencement of such claim.” 2 Kilty’s Laws of Md. act 1791, ch. 45, § 10.
    This law gives a lien to the contractor or to the workmen employed by .the owner, but it,requires, 1. That there shall be a 'contract in writing; 2. That such contract shall be aeknowledged; and 3. Recorded within six months after acknowledgment.
    • In the present case there was a written contract, but it was neither acknowledged nor recorded; and, besides, the remedy adopted is wholly different from that given by the act of 1791.
    Is that law repealed by the act of 1833? It is not in any portion; or, if at all, not so far as concerns the right of the contractor.
    It is not repealed, in whole or in part, expressly or by direct terms. Is it by necessary implication ?
    There must be, to'repeal by implication, a positive repugnancy between the provisions of the new law and those of the old; and even then the old law is repealed only pro tatito, to the extent of the repugnancy. Wood v. The United States, 16 Pet. 342, 362; Daviess et al. v. Fairbairn et al. 3 How. 636, 646; Beals v. Hale, 4 How. 37, 53; Chesapeake & O. C. Co. v. Baltimore &. O. R. R. Co. 4 Gill & J. 1, 152, 153; Dwarris on St. 673; 674, 675.
    A later statute, which is general, does not abrogate a former, which is particular. 6 Rep. b. 19; Dwarris on St. 674.
    Statutes in pari materia, are to be taken together and compared in the construction of them. The United States v. Freeman, 3 How. 556; Dwarris on St. 699.
    Statutes are to be construed with reference to the existing law. Four things are to be considered; what was the law before the act; the mischief not provided against; the remedy provided; and. the reason of that remedy. Heydon’s case, 3 Co. 7.1
    The mischief which required the passage pf the act of 1833, was twofold: 1. The law gave no lien to mechanics contracting with the undertaker or contractor. 2. It gave rio lien whatever to the material-man, unless he was at the same time undertaker, or a workman contracting directly with the owner.
    The whole object of the law of 1833, was to supply the omissions of the act of 1791. It was designed to be auxiliary merely, and not to repeal the provisions of the existing law.
    Certainly no reason can be assigned why the salutary provision of the act of 1791, requiring a contractor to enter into a Written contract, and have the same acknowledged and recorded, was intended to be'annulled.
    The act of 1701 is not obsolete, but has been recognized as in full force. Homans v. Coombe, 3 Cranch, C. C. Rep. 366 — decided in 1828.
    II. The court below erred in refusing to instruct the jury that the plaintiff was not entitled to recover for the 'work and mate-, rials, done and provided under the special agreement.
    1. Because the act of 1833 is inapplicable to cases where work and materials are furnished under a special agreement. Jones v. Shawhan, 4 W. & S. 257, 262; Hoatz v. Patterson, 5 Id. 537, 538; Haley v. Prosser, 8 Id. 133; 134; Witman v. Walker, 9 Id. 183, 187; Barton v. Johns, 5 Barr’s Penn. R. 145, 150; Act of 1791, ch. 45, § 10; United States v. Barney, 2 Hall’s Law J 128; Ex parte Lewis, 2 Gallis. 483; Hostler’s case, Yelv. 66; Bac. Abr. Trover, E.; 2 Rol. Abr. 92, Justification, pl. 2; Chapman v. Allen, Cro. Car. 271; Bul. N. P. 45; Brennan v. Currint, Sayre, 224; S. C. cited 3 Selw. N. P. 1163; Stone v. Lingwood, 1 Str. 651; Collins v. Ongley, cited Selw. N. P. ubi sup.; Stevenson v. Blakelock, 1 Maule & Selw. 535; and see, also, Boyce v. Anderson, 2 Pet. 155.
    2. Because the special agreement in this case was inconsistent with the retention of a lien. Peyroux et al. v. Howard, 7 Pet. 324, 344; Chase v. Westermore, 5 Maule & Selw. 180; Scarfe v. Morgan, 4 Mee. & W. 270; Stoddard Woolen Man. v. Huntley, 8 N. H. 441; Hutchins et al. v. Olcutt, 4 Verm. 549; Bailey v. Adams, 14 Wend. 201; Welch v. Mandeville, 5 Wheat. 277.
    III. The court erred in refusing to submit to,the jury the question whether the work and materials, cr what part thereof, were supplied upon the credit of the building. Hills v. Elliott, 16 S. & R. 56; Hinchman v. Graham, 2 S. & R. 170.
    IV. A declaration should have been filed. Foster on Scire Facias, 72 Law. Lib. p. 350.
    V. The judgment rendered was general and in personam. Thé proceeding was in rem, and the last clause of the act of 1833; expressly prohibits the rendition of a judgment in the scire facias, against any other property than the. building against which the lien existed.
    VI. The c ourt erred in refusing to instruct the jury that the plaintiff war not entitled to recover for the portion of work and materials pe: formed, and furnished under the special agreement, more than tl ree months before the claim was filed.
    VII. The claim, so far as it related to the special agreement, was not filed in conformity with- the requirements of the law, and the court erred in refusing to instruct the jury to that effect. See the claim, R. 9; McDonald v. Lindall, 3 Rawle, 492.
    VIII. The court erred in excluding from the jury, evidence of defects in the work and materials furnished, under the special agreement. Withers v. Greon, 9 Hofyard, 213; Van Buren v. Digges, 11 How. 461. Notice of set-off had been given. R. 5.
    IX. The court erred in refusing evidence of delay, the demur-rage money mentioned in the agreement, being liquidated damages, and not á penalty. Fletcher v. Dyche, 2 T. R. 32; Huband v. Grattan, 1 Alc. &. Napier, 389; Crisdee v. Bolton; 3 C. & P. 240; Leighton v. Wales, 3 M. & W. 545; 2 Poth. Obl. by Evans, 81, &c; Noble v. Bates, 7 Cow. 307; 2 Greenleaf on Ev. §§ 257, 258, 259, and cases cited; Van Buren v. Digges, 11 How. 461; Tayloe v. Sandiford, 7 Wheat. 17.
    The points on behalf of the defendant in error, were -r-

      First. That this act is not repugnant to the act of 1791, but. is remedial, cumulative, and auxiliary. That it was designed to give a lien to every person who, whether under a parol contract, oral or written, or a contract under seal, should thereaftef furnish materials for or do work upon any dwelling or other building in the city of Washington during its erection,-for the owner or -for the contractor.
    That if the building was constructed by contract, no person who did work of furnished materials to such contractor, could have the lien, .unless within thirty days after being so employed, he should give notice in writing to the owner, that he was so employed to work or furnish materials, and that he claimed the benefit of that act.
    These points are presented ■ in the 3d;, 6th, 7th, 8th, 9th, and 10th exceptions.
    1. The first sentence of the act of 1833, is in the most general and comprehensive terms. 7 B. & C. 643.
    2. The second sentence expressly contemplates the case of a contract, and provides a remedy- for those employed by the contractor.
    There is no such provision in any one of-the laws of Pennsylvania referred to by plaintiff, arid under which the decisions of the courts of that State were made.
    3. The act of 1791 expressly recognizes and provides for two sets of liens, the one by the contractor, the other by the workmen. So does the act of 1833.
    4. The act of 1791 contemplated a statutory xnortgage; provided for contracts of a certain description, viz. those in writing acknowledged before a justice, and recorded in the clerk’s office within six months, and gave a remedy in equity.
    This act is not repugnant to that. It extends the remedy and' provides a new one, (not for those who. have made their contracts and recorded them under- the law of 1791,) but to all persons who have done work or furnished materials for the building, without pursuing the remedy given by that law. It pro-, vides a different remedy. It gives an absolute lien in ¿11 cases, for two years, to be enforced upon a claim filed by. scire facias or personal action; -or if no claim is filed, then by personal action.
    The act of 1791 provides a lien to commence from the date of the contract, if recorded within six months. The act of 1833 gives a lien from the commencement of the work.
    There is no. repugnancy between them. The two provisions may well stand together, the latter as cumulative to the former. 3 How. 645-6.
    They are both affirmative statutes, and such parts of the prior, statute as may be incorporated into the subsequent one as consistent with it, must be considered in force. Id. 644-5.
    They are in pari materia; they must be taken together as if they were one law. Id. 564.
    A thing'which is within the intention of the ■ makers of the statute, is as much within the statute as if it were within the letter. Id. 565.
    Here the intention cannot admit of dispute. It was to protect all who furnished skill, time, labor, or materials, to the • erection of the building, without regard to the manner of their employment. They might'make their contract under the act of 1791, and obtain a remedy in equity under that act; or they .might proceed under the law of 1833,-and seek their remedy at law only. Both laws require a recording as notice. The law Of 1833 has received, this construction from its passage, and hundreds of mortgages now existing, rest upon it.
    Unless it repeals the act of 1791 by necessary implication, it may be. merely affirmative, or cumulative, or auxiliary. 16 Pet. 362-3.
    The more natural, if not necessary inference is, that the legislature intended the new law to be auxiliary to and in aid of the purposes of the old law, even when some of the cases provided for may be equally within the reach of each. Id. 363.
    In- construing an act, (and equally so in acts in pari materia, 3 How. 564, 2 T. R. 504,) if there are' expressions not so large in one part as those used in another, but upon a view of the-whole act they can collect from the more large and extensive expression of the legislature, their intention, it is the duty of the Judges to give effect to the larger expressions. Per Lord Ténterden, 7 B. & C. 643."
    A second lav/ on the same subject does not repeal a former one without a' repealing clause; or negative words, unless so clearly repugnant as to imply a negative. But if they be' not so contrary or so repugnant that the last act expresses or implies a negative of the first, then they may continue to stand together. And if such be the case here, a mprtgage of city property, recorded in conformity with either law, would be valid. Many cases of this kind, very analogous, are cited in Foster’s case, 11 Coke, 63, 64; 4 How. 53.
    We-contend that both acts are in force, and the parties may proceed under either, But if the act of 1833 repeals the act of 1791, we contend further that its provisions • clearly embrace written, contracts for construction.

      Second. If the contractor or person who had done work or furnished materials for the owner, files his claim in the clerk’s office, as provided by the act of 1833, within three months after the last work is done by him, under the same written contract, or under an implied contract, during the progress of the work, that claim will relate bade to the commencement of the building and cover the'work and materials mentioned in it and used in the erection of the building. 4th and 5th exceptions.
    1. The language of the act is explicit.- “ Every.....building hereafter constructed and erected, &c., shall be subject to’ the payment of thé debts contracted for, or by reason of any work or materials found and provided by any person or persons, See., employed in furnishing the materials for, or in the erecting and constructing such house or other building, before' any other fifen which originated subsequent to the commencement of such other house or building, &c.Provided, That no such debt, &c., shall remain a lien oil such house or other building; longer than two years from the commencement of the building thereof, unless, &c., a claim be filed within three months after performing the work or furnishing the materials.”
    It could not have been designed by the legislature to deprive a lumber-merchant of his lien, if there was an understanding between himself and the owner that he should'furnish .the lumber for the building from time to time, as it should be required, and it should occur, in the course of the erection of the building, that more than three months should elapse between filing one order and the giving of a. new one.
    2. If the work is done by contract, and there is an express or tacit understanding between the parties that alterations may be required by the owner and executed by the contractor during the progress of the work, it would be in direct violation of the spirit of the law, and the obvious intent of the legislature to deprive-the contractor of his lien, unless he from time to time, and every three months recorded his claim.
    3. The language of the act is, within three months after performing the work ox furnishing the materials. This means, by the force of the terms, after performing the last work or furnishing the last materials used in the progress of the building; not that he shall record his claims toties quoties three months shall elapse. This would-be requiring the party to accumulate costs, the thing the legislature designed to 'avoid, and to do a vain thing, which the law never requires. ’
    4. Much more will this construction apply to á contract, as in this case, for work and materials for a building which contemplated eighteen months in its construction.
    As to the pleadings.
    1. No declaration is required on the appearance of the defendant to a-scire facias under this act; In Blake v. Dodemead et ux. (2 Str. 775,) it is said there is no. such thing as a declaration on a scire facias, the plea is to the writ, and ruwratio and breve in this case are the same.
    Vaughn v. Floyd, 1 Sid. 406. The scire facias disclosed the facts on which it was founded, and required an answer from-the defendant; it was said to be in the nature of a declaration.
    Bank of Scotland v. Fenwick, 1 Exch. 796, (per Rolfe.) The (leclaration,- in fact, sets out the writ, and is in the same form as the -writ.
    Nunn v. Claxton, 3 Exch. 715. Although called a declaration, it is “ merely a mode of entering the writ on the record.”
    See, also, Herd v. Brustowe, Cro. Eliz. 177; Tidd’s Prac. 8th ed. 1140.

      2. The nature of the relief intended, the object of the legislature to give a mortgage, and the writ being provided as notice of the action, the court' may well, as the Circuit Court has here-' tofore, consider it as setting forth the facts on which it is founded, a narrative in the nature of a declaration, make it part of the record, and require the defendant to plead to it. The •statute itself, in the second section, would seem to contemplate the same thing.
    Second, as to the. form of the judgment.
    The writ is not to show cause why execution should not issue against the..property mentioned in it, but to show cause why the court ought not to render judgment for the sum demanded upon the record aforesaid.
    This is the conclusion of the declaration.
    The judgment is responsive. It must be the same after the . pleading “ as in personal actions for the recovery of debts.”
    The' judgment, then, is right. But the record being in the ‘same court, the statute regulates the form and extent of the execution which may issue on that judgment.
   Mr. Justice GRIER

delivered the opinion of the court.

Caldwell, who was plaintiif below, entered’ into a contract With Winder, “ to furnish ajl the materials and do all the carpenter work required to a certain house to be erected in the city of Washington,” for the sum of ten thousand dollars. After the house was finished, .the contractor filed a lien against the building,..claiming this sum, together with sundry charges for extra' work. A scire facias was issued to enforce this claim, and a trial hád, in the course of which, numerous bills of exception were sealed by the court at the defendant’s instance, which form the subjects for our consideration in this case.

1. The want of a declaration, though not the subject of exception below, has. been urged here as an error- But we think this objection is without foundation..

A scire facias is a judicial writ used to enforce, the execution of some matter of record on which it is usually founded; but though a judicial writ, or writ of. execution, it is so far an-ori-' ginal that the defendant may plead to it. As it discloses the facts on which it is foupded, and requires an answer from the defend-1 ant, it is in the nature of a declaration, and the plea is properly to the writ. In the present case the bill of particulars of the plaintiffs claim is filed of record under the statute whieh gives this remedy, and it is recited in the writ and thereby made part of it, so that any further pleading on his part, to set forth the nature of his demand, would De-wholly superfluous.

2. In the written contract between the parties, given in evidence on the trial, it is stipulated that “ the work is to be promptly , executed, so that no delay shall be occasioned to the builder by having to wait for the carpenter’s work;” and also.,' that in-any and every case in which the carpenter shall occasion delay to the building the sum of twenty-five dollars per day shall be deducted for each and every day so delayed, from the amount to be. paid by this contract.”

The defendant, under a notice of set-off, ■ offered to prove “ that in consequence of the plaintiff’s not being ready to put up his work according to said contract,'delay was occasioned by him' in the construction of the building of not less' than three weeks;” and also, “ that the work and materials found and provided upon and for the said building, were defective in .quality and- character, and far inferior in value to what said contract and specification called for.”

The refusal of the court to permit such evidence to go to the jury, is the subject of the first two bills of exception.

The statute which authorizes this proceeding, gives the defendant liberty “ to plead and make such defence as in personal actions for the recovery of debts.” Had the plaintiff below brought his action of assumpsit on the contract, the right to make this defence cannot now be doubted. Por, although it is true, as a general rule, that unliquidated damages cannot be the subject of set-off, yet it is well settled that a total or partial failure of' consideration, acts of nonfeasance, or misfeasance, immediately connected with the cause of' action, Or any equitable defence arising out of the same transaction, may be given in evidence in mitigation of damages, ot recouped ; not. strictly by way of defalcation or set-off, .but for the purpose of defeating the plaintiff’s action in whole or in*part, and to avoid circuity of action.' Without ndticing the numerous cases on this subject, it is sufficient to say that the cases of Withers v. Green, (9 How. 214,) and Van Buren v. Digges, (11 How. 461,) decided in .this court, are conclusive of the question. The court below, therefore, erred in the rejection of the testimony offered.

3. The remaining bills of exception, involve, in fact, but one prominent and important question, and the decision of it will dispose of this case.

The right to file a “mechanic’s lien,”, as it is .usually denominated, is claimed by the.plaintiff, under the act of Congress of March 2d, 1833, entitled,-“An act to secure to mechanics and others, payment for. labor done and materials furnished, in the erection of buildings in the District of Columbia.” The first section oí- -this act,' defines the persons who shall be entitled to this peculiar security arid remedy, as follows:

“All and every dwelling-house, or other building, hereafter constructed arid erected within the city of Washington, in the town of Alexandria, or in Georgetown, in the District of Columbia, shall be subject to the payment of the'debts contracted for, or by reason of any work done, or materials found and provided. by any brickmaker, bricklayer, stonecutter, mason, lime-merchant, carpenter, painter and glazier, ironmonger,-blacksmith', plasterer and lumber-merchant, or any other person or persons employed in furnishing materials for, or in erecting and constructing such house or other building, before any other lien which originated subsequent to the commencement of such house, or other building. But if such dwelling-house or other building, or any portion thereof, shall have been constructed under contract, or contracts, entered into by the owner thereof, or his or her agent, with (any person or persons, no person who may have done work for such, contractor or contractors, or furnished materials to him, or on his order or authority, shall have or possess any lien on said house or other building, for work done, or fnaterials so furnished, unless the person or persons employed by such contractor to do work-on, or furnish materials'for, such. building, shall, within thirty days after being so employed, give notice in writing to the owrier or owners of such building, or to his or to their agent, that, he or they are so employed to work or to furnish materials, and that they claim the benefit of the lien granted by this act.” .

Does a master-builder, undertaker, or contractor, who undertakes, by contract with the owner, to erect a building, or some part or portion thereof, on certain terms, come within the letter oi spirit of this act, or within any of • the classes enumerated, as entitled to this special remedy.? Such persons have an opportunity, and are capable of obtaining their own securities. They-do npt labor as mechanics, but superintend work done by others. They are not tradesmen in lumber, or other materials for building, but employ others to furnish materials. If such contractor should by accident be a carpenter, or an owner or vendor of lumber, yet he deals not with the owner in this capacity, but as an undertaker, who has covenanted for his own securities.

■ The title to this act shows its policy and intention. It is to secure, to “ mechanics and others, payment for labor done and materials found;” and the persons enumerated in the first section are, plainly, those mechanics and tradesmen whose personal labor or property have been incorporated into the building, and not the agents, supervisors, undertakers, or contractors, who employed them. The act contemplates two conditions, under which such labor and materials may have been furnished: First, on the order of the owner, who may act without the intervention of any middleman, and' thus become indebted directly to his mechanics and tradesmen. Or, secondly, when they have been furnished on the order of a contractor or undertaker.. In such cases, the mechanic, or material-man, if he intends- to look to the credit of the building, and not to that of the contractor with whom he deals, must give notice to the owner of the building, within thirty days, of his intention to claim this security. The contractor, though mentioned in the act, is not enumerated among those entitled to its benefit. The aim and policy of this act is also obvious. Experience has shown.that mechanics and tradesmen, who furnish labor and materials for the construction of buildings, are often defrauded by insolvent owners and dishonest contractors. Many build houses on speculation, and after the labor of the mechanic and the materials are incorporated into them, the owner becomes insolvent, and sells the buildings, or encumbers them with liens; and thus, one portion' of his creditors are paid at the expense of the labor and property of others. Or, the solvent owner, who builds by the agency of a contractor or middleman, pays his price and receives his building, without troubling himself to inquire what has been the fate of those whose labor or means have constructed it. These evils required a remedy, and such a one. as is given'by this act. Its object is, not to secure contractors, who can take care of themselves, but those who may suffer loss by confiding in them. It is not the merit of the contractor, that gave rise to the system, but the protection of those who might be wronged by him, if the owner were not compelled thus to take care' of their interests before he pays away the price stipulated. But the contractor is neither within the letter nor the spirit of the act.

A question has been made in the argument, whether the act of Maryland, of ,19th of December, 1791, formerly in force in. this district, is supplied or repealed, by the act of Congress now under consideration. But as the proceedings in this case are not within or under the aet of Maryland, the question is not before us for decision. The plaintiff claims his right to support this proceeding, under the act of Congress alone, and if that-fads him, his only resource is to his action on his contract. That he has mistaken his remedy, the court entertain no doubt.

If precedent were needed to justify this construction of the act of Congress, it may be found in the reports of the Supreme Court of Pennsylvania, where similar legislation has always received the same construction. See Jones v. Shawhan, 4 Watts & Serg. 257; Hoatz v. Patterson, 5 W. & S. 537, &c.

4. It is unnecessary to notice particularly the exception to the form of the judgment. It is certainly not in the form required by the act; and although the act may be construed to prescribe the effect rather than the form of the judgment, there is.no reason why the form should differ from the effect; or that, in words, it should give the plaintiff any thing more than the law gives him, viz. execution of the property described in the scire facias.

The judgment of the Circuit Court is, therefore, reversed, and venire de novo awarded..

Order.

This cause came on to be heard on the transcript.of the record from the Circuit Court of the United States/or the District of Columbia, holden in and fpr the county of Washington, and Was argued by counsel. On consideration whereof, it is now here ordered and adjudged, by this court, that the judgment of the said Circuit Court in this cause, be, and the same is hereby, reversed, with costs, and that this cause be, and the same' is hereby, remanded to the said Circuit Court, with directions to award, a venire facias de novo.


author:
Mr. Justice NELSON DANIEL, Justice,
      Mr. Justice CURTIS.

text:
    The Salmon Falls Manufacturing Company, Plaintiff in error, v. William W. Goddard.
    The statute of frautUm .Massachusetts, is -substantially, the same as that of_29 Car.' 2, tad declares that no contract for the sale of goods, &c., shall be valid, &c ‘-unless some note or memorandum in writing of the bargain, be made, and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized.”
    The following memorandum, viz.: “ Sept. 19, W. W. Goddard, 12 mos. 300 hales S. F. drills, 7i; 190 cases blue do. 8|. Credit to commence when ship sails; notafter December 1st, delivered free of charge for truckage. The blues, if color satisfactory to purchasers. E. M. M. W. W. G.” — is sufficient to take, the case out of the statute.
    If the terms are technical or equivocal on the face of the instrument, or made so by reference to extraneous circumstances, parol evidence of the usage and practice in the trade, is admissible to explain the meaning.
    It was competent also to refer to the bill of parcels delivered for the purpose of explanation. It was made out and delivered by the seller, in the course of the fulfilment of the contract, acquiesced in by the buyer, and the goods ordered to be delivered after it was received.
    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, fot 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, withouc payment of the price. It purports on its face a sale in presentí.

    III. The paper signed by the defendant, dated 19th September, (Record, p. 11,) is a sufficient compliance with the statute of frauds, and tjie 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 rooni.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. & Weis. 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. & Weis. 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 samé principle, or infer from the paper, the character and purpose iii and for which a party signs ?
    The provision in this paper, that the goods are to be delivered free of trackage, does not prevent the passing of the property, without and before delivery — and without payment.
    Phillimore v. Barry, 1 Camp. 513. “ If goods are sold to be paid' for in thirty days, and if not carried away at the end of that time, warehouse rent to be paid — the property of the goods vests absolutely in the purchaser, and they remain at' his risk from the moment of the sale.”
    King v. Meredith, 2 Camp. 639. “ The fact that the carrier is to be paid by the vendor, will not defeat the vesting of the property.”
    Wackerbath v. Masson, 3 Camp. 270. “ Where, in a contract for the sale of sugar, there is the following term, ‘ free on board a foreign ship,’ the seller is- not bound to deliver it into the hands of the-purchaser, but only to put it on board a foreign ship, which it is the duty- of the purchaser to name.”
    IV. The following instructions, asked for by the plaintiff below, and refused, ought to have been given by the court to the jury. .
    Instruction third; ásked by the plaintiffs. That if the jury are satisfied that Mason & Lawrence were the general agents and factors of the' plaintiffs ; that the memorandum of September-19, 1850, was executed by the parties whose initials are affixed, and was delivered by defendant to them; and that the invoice or bill of parcels, dated 30th of September, 1850, was delivered by Mason & Lawrence to defendant, in furtherance of said con-tract, as containing a particular specification and enumeration of the bales and cases mentioned'in the memorandum, or contract of September 19th, and was received and retained by him as a true invoice, or bill of parcels, they are to be taken as parts of one contract, and together constitute a memorandum or contract in writing, binding upon both parties, and not void-within the statute of frauds.
    Eighth instruction asked. If the jury are satisfied that*' the two papers exhibited by the plaintiffs, severally dated September 19, and September 30, 1850, relate to the same transactions- and things, and manifestly relate to the same contract and transaction, they are to be construed together, and so taken',’ constitute a sufficient written rióte or memorandum of the coa-. tract,-within the statute of frauds.
    Whether the two papers, the one dated the 19th, the other the 30th of September, constituted the contract of the ^parties as finally settled, is a question of fact, exclusively for the determination of the jury — the construction of the. papers is partly .a matter of fact, and partly matter of law.
    'Addison on Contracts;- 80, 81. -“ The coptract may be authenticated and established through the medium of letters and separate writings, provided they refer to each other, and to the same persons and things, and manifestly relate to the same contract and transaction.”
    Jackson v. Lowe, 1 Bing. 9. This case recognizes the position that two papers may be regarded from the same context and subject-matter of the papers, as referring to the same contract, [t also recognizes the cases cited as to bills of parcels. See also Smith’s Mer. Law, 407,
    Dobell v. Hutchinson, 5 Neville & Man. 251. “And where, upon such contract, (a paper signed only by the purchaser,) it does not appear upon the face of it, or by reference, of whom the property is purchased, letters, written by persons in the character of vendors, may be connected with the- contract, for the purpose of supplying this defect.”
    V. The evidence before the jury was competent and sufficient to authorize the jury to find a delivery and acceptance, to and by the defendant.
    VI. The defendant is estopped to set up the statute, or to say that no delivery and acceptance has been made.
    The points made by the counsel for the defendant in error, werq the following.
    I. The memorandum in this case is insufficient to satisfy the requirements of the statute of frauds.
    “ No contract for the sale of any goods, wares, or merchandise, for the price of fifty dollars or. more, shall be good and valid, unless the purchaser- shall accept and receive part of the goods so sold, or shall givé something in earnest to bind the bargain, or in part payment, or unless some note or memorandum in writing of the bargain be made and signed by the party to be charged thereby, or by some person thereunto by him fully authorized.” Rev. Stat. of Mass. ch. 74, § 3. p. 473.
    1. The memorandum of September 19, is-insufficient, since it cannot be understood without reference to parol evidence.

      a. It does not clearly set out or evidence that a sale has been made, or whether a contract for a future sale has been made, or only proposals offered, leading to a sale not yet agreed on.
    . b. It does not ascertain who is vendor and who is vendee. Addison on Contracts, 80; Bailey v. Ogden, 3 Johns. R. 399; Smith’s Mer. Law, 451.
    c. The price is uncertain. Addison, 80; Smith’s Mer. Law, 451, and the cases in his note; 5 B. & C. 583; 2 B. & C. 627; 1 N. R. 252; Laythrop v. Bryant, 2 Bing. N. C.; 10 Bing. 217, 227, 383, 482.

      d. The time of commencement of credit s uncertain; what ship, and-what December, are uncertain.

      e. The name of the plaintiff is not on the contract; nor the name nor initials*of any person then his agent. R. M. M. are not the initials of any person then an agent of the plaintiff. Mason and Lawrence were the agents, and, to avail the plaintiff, he must produce a written contract, containing his name or their names. Higgins v. Senior, 8 Mees. & Wels. 844; Shaw et al. v. Phinney, 13 Met. 456.
    To the various insufficiencies aforesaid, and to the general principles on which the statute of frauds is construed: Ide v. Stanton, 15 Vt. 685; Adams v. McMillan, 7 Porter, 73; Champion v. Plummer, 4 B. & P. 252; Elmore v. Kingscote, 5 B. & C. 583; Hoadley v. McLaine, 10 Bing. 482; Acebal v. Levy, 10 Bing. 170; Cooper v. Smith, 11 East, 103; Kain v. Old, 2 B. & C. 205; Parkhurst v. Van Cortlandt, 1 J. C. R. 280; Abeel v. Ratcliffe, 13 Johns. 297; Goss v. Nugent, 5 B. & Ad. 58; Stowell v. Robinson, 3 Bing. N. S. 928; Harvey v. Grabham, 5 Ad. & Ellis, 61; Ford v. Yates, 2 Man. & Granger, 549; 2 Kent’s Com. 511, 6th ed.; Story on Sales, § 269, p. 212; 1 N. H. 157; 3 Greenleaf, 340; 4 Scott’s N. R. 504; 23 Wendell, 270, 275; 5 Phil. Evidence, (Cowen’s last ed.) 84; 16 Wendell, 28, 32.
    2. The bill made out by Rien, dated September 30,- cappot be connected with the memorandum oí September 19, to form a note within the statute.
    á. Neither contains any reference to the other.

      b. The only one signed by defendant and oh which only he can be charged, (that of September 19,) does not .anticipate, provide for, or in any manner adopt,-the'paper , of September 30, written long afterwards; and it cannot be deemed to be amended, completed, or altered by such subsequent unanticipated paper.
    Addison on Cont. 80, 81, and cases there cited; 5 Phil. Ev. (Cowen’s last ed.) 84; Boydell v. Drummond, 11 East, 142; 1 St. on Ev. 603; 1 Greenl. on Ev. § 268; Chitty on Cont. 314-16; Sandiland v. Marsh, 2 B. & A. 680; Coles v. Trecothick, 9 Ves. 250; Tawney v. Crowther, 2 Bro. Ch. Cases, 320, n. a; Story on Sales, § 272, p. 216.
    3. The bill of sale of September 30th is. in itself insufficient as a memorandum, as not signed by the defendant, or by. any • one authorized by him .to sign it for him.
    A. Neither Mason nor Rien had any express authority from th,e defendant to sign for him, and their position gave them no implied authority to do so.
    Commission merchants stand upon a different footing from brokers and auctioneers; being agents for one party/only, they can only bind their principals. 13 Met. 456; Sewall v. Fitch, 8 Cow. 215; Dixon v. Bromfield, 2 Chit. Rep. 205; Wright v. Dunnell, 2 Camp. 203; Fairbrother v. Simmons, 5 B. & A. 333; 1 R. & M. 325, Raynard v. Linthorn; Smith’s Merc. Law, 455, and cases cited; 1 Bl. 599; 1 Esp. 105; 7 E. 569.
    B. There was no subsequent ratification by the defendant of the act of Rien.

      a. The language of the defendant is perfectly consistent with the idea that he had a right to insist upon having the goods, as the bill sufficiently bound the plaintiff’, and is therefore no necessary ratification.

      b. The silence of defendant was no ratification. Rien was an officious intermeddler "in the business, (if he had assumed to-act as agent for defendant,) so far as defendant is concerned ; and it is holden by some, though denied by others, that in such case, even after notice from such person of his act, silence is no ratification. 1 Livermore, Agency, 50; Story on Agency, 251; and note.
    But defendant had no notice from Rien that he had assumed to act for him, and so silence would not amount to ratification, even under the worst view of the law for the defendant. McLean v. Dunn, 1 M. & P. 761; and all cases hold that, to a ratification of an unauthorized agency, knowledge that there has been an assumption of agency for the very party ratifying is indispensable.
    c. There was no express ratification of Rien’s act bv defendant.
    The view which the court took at the nisi heading of the case of Batters v. Sellers, 5 H. & J. 117, seems impregnable; See, too, 5 Phil. Ev. (Cowen’s last ed. 358,) Hawkins v. Chace, 19 Pick. 502; Graham v. Musson, 5 Bing. N. C. 603.
    3. Even if the memorandum of the bargain of September 19 was sufficient within the statute, yet unless there was a subsequent delivery to, and acceptance of, goods by the defendant, the property, under the special circumstances, did not pass, and remained the plaintiff’s at the time of the fire.

      a. The- memorandum leaves it doubtful, whether a sale in presentí, or a contract, or proposals towards a contract, for a future sale, were intended. The probable, if not- necessary inference, from the face of the paper, is, that no present sale is made.
    1. No specific goods are designated.
    2. An election to reject.or deny any contract as to part, at the mere pleasure of the purchaser, is reserved.
    3. - Credit is not to commence until a future uncertain event.
    4. Delivery is thereafter to be made.

      a. The goods in fact were not at the' time selected, or set apart; and of course no property therein could or did pass; this aids also the inference from the face of the paper, that no present sale was intended.

      c. When plaintiff subsequently selected them, the property would not pass, certainly under such a contract, until defendant accepted them, and thus adopted, the particular designation; and this he never did. In Rhode v. Thwaites, (6 B. & C. 388,) there was. such actual acceptance by the buyer.

      e. The plaintiff was permitted to prove that he had a right tv a note before delivery; and he would have a lien for this; which affords some ground of additional argument to show that 'the property.did not pass.-
    II. There was no delivery by the plaintiff, nor acceptance by the defendant, sufficient to take the case out of the operation of the statute requiring a demand.
   Mr. Justice NELSON

delivered the opinion of the court.

This is a writ of error to the Circuit Court of the United States for the District of Massachusetts.

The suit was brought by the plaintiffs in the court below, to recover the price of - three hundred bales of brown, and of one hundred cases of blue drills, which they had previously sold to the defendant.

_ The contract for the purcnase was made with the house of Mason & Lawrence, agents of the plaintiffs, in Boston, on the 19th September, 1850, and a memorandum of the same signed by the parties. A bill of parcels was made out under date of 30th September, stating -the purchase of the goods by the defendant, carrying out prices, and footing up the amount at $18,565.03; also the terms of payment — note at twelve months, payable to the treasurer of the plaintiffs. This was forwarded to the defendant on the 11th October, and in pursuance of an order from him, the three hundred bales were sent from their establishment at Salmon Falls by the railroad, and arrived at the depot in Boston on the 30th October, of which notice was given to the defendant on the same day, and a delivery tendered. He requested that the goods should not be sent to his warehouse, or place of delivery, for the reason, as subsequently stated by his cleric, there was no room for storage. The agents of thé plaintiffs the next day renewed .the tender of delivery by letter^ adding that the goods remained at the depot at his risk, and subject to storage, to which no answer was returned.- On the night of the 4th November, the. railroad depot was consumed by fire, and with it the three hundred bales of the goods in question. The price was to be paid by a note at twelve months, which the defendant refused to give, upon which refusal this action was brought.

The court below, at the trial, held that the .written memorandum made at the time of entering into the contract between the agents of the plaintiffs and the defendant, was not sufficient- to take the case out of the statute of frauds, and as there was no acceptance of the goods, the plaintiffs could not recover.

- As we differ with the learned Judge who tried .the cause, as to. the sufficiency of the written memorandum, the question upon the statute is the only one that it will be material to notice. The memorandum-is as follows:

“ Sept. 19;— W. W. Goddard, 12 mos.

300 bales S. F. drills, . . . 1\

100 cases blue do.....8|

“ Credit to commence when ship sails: not after Dec. 1st — delivered free of charge for truckage.

“ The blues, if color satisfactory to purchasers. K. M. M.

w. w. a.”

The statute of Massachusetts on this subject .is substantially the same as that of 29 Car. II. ch. 3, § 17, and declares that no contract for the sale, of goods, &c., shall be valid, &c., “ unless some note or memorandum in writing of the bargain be made, and signed by the party' to be charged thereby, or by some person thereunto by him lawfully authorized.”

The word “ bargain,” in the statute, means the terms upon ' which the respective parties contract; and in the sale of goods, • the terms of the bargain must be specified in the note or memorandum, and stated with reasonable certainty, so that they can be understood from the writing itself, without having recourse to parol proof; for, unless the essential terms of the sale can-be ■ascertained from the writing itself, or by a reference contained in.it to something else, the memorandum is not a compliance with the statute.'

This brief note of the contract, however, like all other meicantile.contracts, is subject to explanation by reference to the usage and custom of the trade, with a view to get at the true meaning of the parties, as each is presumed to have contracted ih reference to them. And although specific and express provisions will control the usage, and exclude any such explanation, yet, if the terms are technical, or equivocal on the face of .the instrument, or made so by reference to extraneous circumstances, parolevidence of the usage and practice in the trade, is admissible to explain'the meaning. 2 Kent C. 556, and n. 3; Id. 260; and n.; Long on Sales, 197, ed. 1839, 1 Gale & Davis. 52.

Extraneous evidence is also admissible to show that a person-whose name is áffixed to the contract, acted only as an agent,, thereby enabling the principal either- to sue or be sued in 'his own name; and this, though' it purported on its face to have been made by the agent himself, and the principal not named. Higgins v. Senior, 8 M. & Wels. 834; Trueman v. Loder, 11 Ad. & Ell. 589. Lord Denman observed, in the latter case, “ that parol evidence is always necessary to show that the party sued is the party making the contract, and bound by it; whether he does so in hi's own name, or in that of another, or in a feigned name, and whether the contract be signed by his own hand (or that of an agent) are inquiries, not different .in their nature from the question, Who is the person who has just ordered goods in a shop ? If he is sued for the price, and his identity made o.ut, the contract is not varied by appearing to have been made by him in a name not his own.”

So .the' signature of one of the parties is a sufficient signing to charge the firm. Soames v. Spencer, 1 D. & R. 32; Long on Sales, 58.

It has also been held, in the case of a sold note which expressed “ eighteen pockets of hops, at 100s.,” that parol .evidence was admissible to show that the 100.S. meant the price per cwt. Spicer v. Cooper, 1 Gale & D. 52; 5 Jurist, 1036.

The memorandum in that case was as follows: “ Sotd to Waite Spicer, of S. Walden, 18 pos. Kent hops, as under July 23, 1840; 10 pos. Barlow East Kent, 1839; 8 pos. Springall Goodhurst Kent, 1839, 100s. Delivered, John Cooper.”

Evidence was admitted on the trial to prove that the 100s. was understood in the trade to refer to the price per cwt-., and the ruling approved by the King’s Bench. Lord. Denman put a case to the counsel in the argument to illustrate his view, that bears upon the case before us. Suppose, he said, the contract had been for ten butts of beer, at one shilling, the ordinary price of a gallon — and intimated that the meaning could hardly be mistaken.

Now, within the principles above stated, we are of opinion that the memorandum in question was a sufficient compliance with the statute. It was competent to show, by parol proof, that Mason signed for the firm of Mason & Lawrence, and that the house was acting as agents for the plaintiffs, a company engaged in manufacturing the goods which were the subject .of the sale; and also to show, that the figures 1\ and 8§, set opposite the three hundred bales and one hundred cases of goods, meant seven and a quarter cents, and eight and three quarter cents per yard.;

The memorandum', therefore, contains the names ot the sellers, and of the buyer — the commodity and the price — also, the time of credit, and conditions of the delivery; and, in the absence of any specified time or place of delivery, the law will supply the omission, namely, a reasonable' time after the goods are called for, and usual place of business of the purchaser, or his customary place for the delivery of goods of this description.

In respect to the giving of the note, which was to run during the period of the credit, it appears to be the uniform custom of the house of Mason & Lawrence, to take notes for goods sold .of this description. The defendant was one of their customers, and knew this usage; and it is a presumption of law, therefore, that the purchase was made with reference to it, there being no stipulation to the contrary in the contract of the parties.

We are.also of opinion, even admitting that there might be some obscurity in the terms of the memorandum, and intrinsic difficulty In a proper understanding of them,- that it would be competent, under the circumstances of the case, to refer to the bill of parcels delivered, for the purpose of explanation. -We do not say that it would be a note in writing, of itself sufficient to bind the defendant within the statute; though it might be to bind the plaintiff.

It was a bill óf sale made out by the seller, and contained his understanding of the terms and meaning of the contract; and hewing been received by the buyer, and acquiesced in, (for the order to have the goods forwarded was given after it was received,) the natural inference would seem to be, that the interpretation given was according to the understanding of both parties. It is not necessary to say that this would be the conclusion, if the bill differed- materially from the written contract; that- might present a different' question; but we think ify is so connected with, and naturally resulting from, the transaction, that it may be properly referred to for the purpose of explaining any ambiguity or abbreviations, so common in these brief notes of mercantile contracts.

A printed bill of parcels, delivered by the seller, may be a sufficient memorandum within the statute to bind him, especially, if subsequently recognized by a letter to s the buyer. 2 B. & P. 238 D.; 3 Esp. 180. And generally the contract may be collected from several • distinct' papers, taken together, as, forming parts of an entire transaction, if- they are connected b.y express reference from the one to the others. 3 Ad. & Ell. 355; 9 B. & Cr. 561; 2 Id, 945; 3 Taunt. 109; 6 Cow. 445; 2 M. & Wels. 660; Long on Sales, 55, and cases.

.In the case before.us, the -bill of parcels is not only connected with the contract óf sale, which has beén signed by both parties, but was made out and delivered in the course of the fulfilment of it;-has-beeñ acquiesced in by the buyer, and. the goods ordered to be delivered after it was received. It is not a memorandum sufficient' to bind -him, because his name is hot affixed to it by his authority; but if he had subsequently recognized it by letter to the sellers, it might have been sufficient. 2 B. & P. 238; 2 M. & Wels. 653; 3 Taunt. 169.

But although we admit, if it was necessary for the plaintiffs to rely upon the bill as the note or memorandum within the statute, they must have failed, we think it competent, within the principle of the cases on the subject, from its connection with, and relation to, .the contract, to refer to it as explanatory of any obscurity or indefiniteness of its terms, for the purpose of removing the ambiguity.

Take, for example, as an instance, the objection that the price is uncertain, the figures 7J and 8|, opposite the 300 bales and 100 cases of drills, given without any mark to denote what is intended by them.

The bill of parcels carries out these figures as so many cents per yard, and the aggregate amount footed up ; and after It is received by the defendant, and with a knowledge of this explanation, he orders the goods to be forwarded.

We cannot doubt but that the bill, under such circumstances, affords competent evidence of the meaning to be given to this part of the written memorandum. And so, in. respect to any other indefinite or abbreviated item to Ire found in this brief note of a mercantile contract.

For these reasons, we are of opinion, that the judgment of the court below, must be reversed, and the proceedings remitted, with, directions to award a venire de novo.

Mr. Justice CATRON, Mr. Justice DANIEL, and Mr. Justice CURTIS, dissented.

DANIEL, Justice,

dissenting.

Upon the point made in this, case, on the Statute of. Frauds, I entirely concur in the exposition of the law just announced by the court. With- respect, however,- to the proceedings ordered by this court to be taken in this case in -the Circuit Court, I am constrained to dissent from the decision of my brethren. ■ My opinion is, that under the 2d section of the 3d article of the' Constitution, the courts of the United States could not. take cognizance of the controversy between these parties; and that therefore the proper direction to the Circuit Court would have been to dismiss this suit for want of jurisdiction. My reasons, for the conclusion here expressed, having .been given in detail in the case of.Rundle et al. v. The Delaware and 'Raritan Canal Company, during the present term, it is. unnecessary to repeat them on this occasion.

Mr. Justice CURTIS.

I have the misfortune to differ' from the majority of my brethren, in this case, and, as the quéstion is one which enters into the daily business of merchants,, and at the same time involves the construction of- a statute of the Commonwealth of Massachusetts, I think it proper to state, briefly, the grounds on which I rest my opinion.

The first question is, whether the writing of the 19th of September is a sufficient memorandum within the 3d section of the 74th chapter of the Revised Statutes of Massachusetts. The writing is in these words and figures.

“ Sept. 19. W. W. Goddard, 12 m'os.

300 bales S.'F, drills . . 7J,

100 cases blue “ ■ . . 8§.

Cr. to commence when ship sails; not after Dec’r 1st; delivered free of eharge for truckage. n. m. m.

w. w. G.

The blues, if color is satisfactory to purchaser.”

Does this writing show, upon its face, and without resorting to extraneous evidence, that "W. W. Goddard was the purchaser of these goods ? I think not. Certainly it does not so state ih terms, nor can I perceive how the fact can be collected from the paper, by any certain intendmént. If it be assumed that a sale was made, and that Goddard was a party to the transaction, what is there, cn the face of the paper, to show whether Goddard, sold or bought! Extraneous evidence that he was the seller, would be just as consistent with this writing, as extraneous evidence that he was the purchaser. - Suppose the fact had been, that Mason was the purchaser, and that the writing might be explained by evidence of that fact; it would then be read that Goddard sold to Mason, on -twelve months’ credit; and this evidence would be consistent with every thing-which the paper contains, because the paper is wholly silent as to the fact whether he was the seller .or the purchaser. In Bailey, et al. v. Ogden, (3 Johns. Rep. 398,) an action for not accepting sugars, the memorandum was:

“ 14 December. v

J. Ogden & Co. — Bailey &. Bogart.

mTíiei:

60 and 9° days.

Debenture part pay.”

Mr. Justice Ként, who delivered the opinion of the court, enumerating the objections to the memorandum, says, ne person can ascertain, from this memorandum, which of the parties was seller, and which buyer; and I think it would be difficult to show that the memorandum now in question is any more intelligible, in reference to this fact.

Indeed, I do not understand it is supposed, that, in the absence of all extraneous evidence, it could be determined by the court, as matter of law, upon an inspection of the paper alone, that Goddard was the purchaser of these goods. • The real inquiry is, whether extraneous evidence of this fact is admissible.

Now, it is true, the statute requires only some note, of memorandum, in writing, of the bargain; but I consider it settled, that this writing must show who is vendor, and who is purchaser. In Champion v. Plumer, (1 B. & P. New Rep. 252,) the memorandum contained the name of the vendor, a description of the goods, and their price, and was.signed by the vendee; yet,it' was held that the vendee could not maintain an action thejeon, because it did not appear, from the writing, that he was vendee, though it was clearly proved by parol.

In Sherburn et al. v. Shaw, (1 N. H. Rep. 157,) the plaintiffs caused certain real estate to be sold at auction, and the defendant, being the highest bidder, signed a memorandum, agreeing to take the property; this memorandum was written on a paper, headed, “ Articles of sale of the estate of Jonathan Wkrner, deceased,” containing the terms of the sale; and this paper was also signed by the auctioneer. Yet the court, through Mr. Justice Woodbury, who delivered the opinion, held that, as the paper failed to show that the plaintiffs were the vendors, it was radically defective. Here, also, there was no doubt that the plaintiffs were the vendors, but extraneous evidence to supply’this fact was considered inadmissible.

It seems to me that the fact that the defendant was the purchaser, is, to say the least, as necessary to be stated in the writing as any other fact, and that to' allow it to be proved by parol, is to violate the intent of the statute, and encounter the very mischiefs which it was enacted to prevent. Chancellor Kent, (2 Com. 511,) says, “ the contract must, however, be stated with reasonable certainty, so that it can be understood- from the writing itself, without having recourse to parol proof.” And this position rests upon a. current of authorities, both in England and America, which it is presumed are not intended to be disturbed. But how can the contract be understood from the writing itself, when that fails to state which party is vendor and which purchaser ?

I am aware that a latent ambiguity in a contract may be removed by extraneous evidence, according to the rules of the common law; and that such evidence is also admissible to show what, in point of .fact, was the subject-matter called for by the terms of a contract. Bradlee v. Steam P. Co. 16 Pet. 98. So. when an . act has been done by a person, and it is doubtful whether he acted in a private or official capacity, it is allowable to prove by parol that he was an agent and acted as such. But these cases fall far short of proving that when a statute requires a contract to be in writing, you may prove by parol the fact that the defendant was purchaser, the writing being silent as to that fact; or that a writing, which does not state who is vendor and who purchaser, does contain in itself the essentials of a contract óf sale.

It is one thing to construe what is written; it is a very different thing to supply a substantive fact not stated in the writing. It is one thing to determine the meaning and effect of a complete and valid written contract, and it is another thing .to take a writing, which on its face imports no contract, and make it import one by parol evidence.- It is one thing to show’thai a party, who appears by a writing to .have made a contract, made it-as an agent, and .quite a different thing to prove by ■parol that he made a purchase when the writing is silent as to that- fact. The. duty and power - of the court is a duty and power to give a construction to what is written, and not in any case to permit it to be added to by parol.' Least of all when a statute has required the essential requisites of a contract of sale to.be in -writing, is it admissible, in my judgment, to allow the fact, that.the defendant made a purchase, to be proved by parol. If this fact, which lies at the basis of the action and to which every other is but incidental, can be proved by evidence out of the writing signed by the defendant, the statute seems to me to be disregardéd.

'It has been argued that the. bill of parcels, sent to Goddard by Mason and Lawrence, and received- by him’, may be resorted to for- the purpose of showing -he was the purchaser. But it is certainly the law of Massachusetts, where this contract was made, ahd the case tried, as I believe.it is of most other States, and of England, -thaLunless the memorandum which is signed contains a reference to some other paper, no paper, not signed by the' party to be charged, can be connected with the memorandum, or used' to supply any defect therein... This was held .-in' Morton et al. v. Dean, (13 Met. R. 385,) a case to which.I shall have occasion more fully to refer hereafter. And in conformity therewith, Chancellor Kent lays, down the rule in 2 Com. 511, and refers to many authorities in support of it. X am not ¿.ware that -any court has held otherwise.

■'That this bill of parcels was of itself a sufficient memorandum under the statute, or that it was a paper signed by the defendant, or by any person by him thereunto lawfully authorized, Ido not understand to be held by the majority of the court.

Now the Inemorandum 01. the 19th September, is either sufficient or insufficient, under the statute. If the former, there is no occasion to resort to the bill of- parcels tó show who was vendor, and who purchaser; because, if the latter, it cannot, consistently with the statute, be made good by another paper not signed, and connected with it only by parol. To charge a party upon an insufficient memorandum, added to by another independent paper, not signed, would be to charge him when there was no sufficient memorandum signed by him, and therefore in direct conflict with the statute. It does not seem to me to be an answer, to say that the bill of parcels was made out pursuant to the memorandum. If the signed memorandum itself does not contain the essentials of a contract of sale, and makes no referencé.to any other paper, in no legal sense is any other paper pursuant to it — nor can any other paper be connected with it, save by parol evidence, which the statute forbids. In point of fact, it would be difficult to imagine any two independent papers more nearly connected, than a memorandum made and signed by an auctioneer, and the written conditions read by him at the sale. Yet it is settled, that the latter cannot be referred to,unless expressly called for by the very terms of the signed memorandum. Upon what principle does a bill of parcel stand upon any better ground ?

The distinction, heretofore, has been between papers called for by the memorandum by express reference, and those not called for; this decision, for the "first time, I believe, disregards that distinction, a,nd allows an unsigned 'paper, not referred to, to be used in evidence to charge the purchaser.

In my judgment, this memorandum was defective in not showing who was vendor, and who purchaser, and oral evideneé to supply this defect was not admissible.

But if this difficulty could be overc ome, or if it had appeared on the face of the paper, that Goddard was the purchaser, still,' in my judgment, there is no sufficient memorandum. I take, it to be. clearly settled, that if the court cannot ascertain from the paper itself, o.r from some other paper therein referred to, the essential terms of the sale, the writing does not take the case out of the statute. This has been so often decided, that it is sufficient to refer to 2 Kent’s Com. 511, where many of the cases are collected.

The rule stated by the Chancellor, as a- just deduction from the authorities, is, “ Unless the essential terms of the sale can be ascertained from the writing itself, or by a reférence contained in it to something else, the writing is not a compliance with the statute; and if the agreement be thus defective, it cannot be supplied by parol proof, for that would at once introduce all the mischiefs which the statute of frauds and perjuries was intended to prevent.”

The statute, then, requires the essential terms of the sale to be in writing; the credit to be allowed to the purchaser is one of the terms of the sale.

And. if the memorandum shows that a credit was to be given, but does not fix its termination, it is fatally defective, for the court cannot ascertain, from the paper, when a right of action, accrues to the vendee, and the contract shown by the paper is not capable of being described in a declaration. The rights of the parties, in an essential particular, are left undetermined by the paper. This paper shows there was to be a credit of six months, and contains this clause — “Cr. to commence when-ship sails: not after Dec’r 1st.” According to this paper, wheii is this credit to commence? The answer is, when ship sails, if before December 1st. What ship ? The paper is silent.

This is an action against Goddard for not delivering his note on twelve months’ credit, arid it is an indispensable inquiry, on what day, according, to the contract, the note, should bear date. The plaintiffs must aver, in their -declaration, whát note Goddard was bound to deliver, and the memorandum must enable the court to say that the description of the notes in the declara-' tion is. correct. They attempt this by averring, in the declaration, that the contract was.'for a note payable in twelve months from the sailing of a ship called the Crusader, and that this ship sailed on the sixth day of November. But the writing does -not refer to the. Crusader; and if oral evidence were admissible to prove that the parties referred to the Crusader, this essential term of their contract is derived from parol proof, contrary to the requirement of therstatute. It was upon this ground the case of Morton ét al. v. Dean, and many other similar cases, have been decided. In that case, there was a-memorandum signed by the auctioneer, as the agent of both parties, containing their names, as vendor and vendee, the price to be paid, a'nd a sufficient description of the property. But it appeared that there were written or printed conditions read at the sale, but not referred to iri the memorandum, containing the terms, of credit, &c., and therefore that the memorandum did not fix all the essential parts of the bargain, and it was held insufficient.

But, further; even if oral evidence were admissible to show that tfie parties had in view some particular Vessel, and so to explain -or render certain the memorandum, no such evidence was offered, arid no request to leave that question of fact to the jury, was made. Mason, who made the contrapt with Goddard, was a witness, but he does not pretend the parties had any particular vessel in view, still less that they agreed oh the Crusader as the'vessel, the sailing of which was to be the commencement of the credit. I cannot perceive, therefore, how either of the counts in this declaration is supported by the evidence, or how a different verdict could have lawfully been rendered.

The count for goods, sold and delivered, .was clearly not maintained, because, when the action was brought, the credit had not expired, -even if it began - on the 19th of September. One of the special counts avers, that the notes were to be due twelve months from the 80th of September; but this is inconsistent with the written memorandum, and there is no evidence to support it. The other special counts all declare for a note due - twelve .months after the sailing of the Crusader, but, as already stated, there is no evidence whatever to support this allegation, and a verdict of -the jury, affirming such a contract, must have been set aside.

It may be added, also, that no one of the prayers for-instructions, contained in the bill of exceptions,makes the fact that the parties had reference to the Crusader, any element of the contract, but that each of them asks for an instruction upon.the assumption that this necessary term of the contract had not been in any way supplied.

I consider the language of Chief Justice Marshall, in Grant v. Naylor, (4 Cranch, 234,) applicable to this case. That great Judge says: “Already have so many cases been taken out of the statute of frauds, which seem to be within its' letter, that it may well be doubted whether the exceptions do not let in many of tKe mischiefs against which the rule was. intended to guard. The best Judges in England have been of opinion that this relaxing construction of the statute ought not to be extended further than it has already been carried, and this court entirely concurs in that opinion.”

I am authorized to state that Mr. Justice CATRON concurs in this opinion.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Massachusetts, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded ’to the said Circuit Court, with directions to award a venire facias de novo.


author: Mr. Justice CATRON

text:
    William D. Nutt, Executor of Alexander Hunter, deceased, Plaintiff in error, v. Philip H. Minor.
    Where the marshal of the District of Columbia engaged the services pf a clerk for a stipulated sum per annum, and the service continued without any new agreement,' and the jury were instructed that they might imply a new agreement to pay the clerk at a different rate, this instruction was erroneous. There was nothing,in. the evidence from which the jury could imply such new agreement.
    ■ This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington.
    The facts are stated in the opinion of the court.
    It was argued by Mr. Bradley' and Mr. Davis, for the plaintiff in error, and by Mr. Lawrence, with whom was Mr. Carlisle, for the defendant in error.
   Mr. Justice CATRON

delivered the opinion of the court. Alexander Hunter was appointed marshal of the District of Columbia in 1834, and continued to fill that office by reappointments, until June, 1848, at which time he died. Shortly after he entered on the duties of his office, in 1834, he appointed Daniel Minor his deputy' for the county of Alexandria, where a separate court was held and jurisdiction exercised; and for that county Daniel Minor was practically marsTial.

Philip E[. Minor, the plaintiff beldw, was the brother of Daniel Minor, who,.being desirbus to obtain the office of .clerk to the marshal for Philip H., applied to Hunter for this purpose, and advised him to employ Philip H. as his clerk, and Hunter agreed to do so; Daniel and Philip came up from Alexandria to Washington, and, m the marshal’s room, a conversation took place between Philip H. Minor, Hunter the marshal, and Daniel Minor the deputy. Hunter proposéd to give, as salary for the service, two hundred, dollars per annum, and that Daniel Minor as deputy for Alexandria county, should give .one hundred dollars, making the. salary three hundred dollars. Daniel Minor insisted that the salary should be larger; Hunter replied, that he was just in office and did not know what 'the profits would be, nor what’the value of the duties to be discharged by the clerk would be; and that he ’did not feel justified in giving a larger salary. Daniel Minor then offered, that if Hunter’would pay tWo hundred and fifty dollars, lie would pay one hundred and fifty towards the" salary, which was agreed to by Hunter and Daniel Minor on the one part, and by Philip H. Minor on the other.

Daniel Minor, who was the principal witness, testified to the foregoing facts for the plaintiff below, on tfie trial; and further deposed, that he took' his brother Philip aside and conversed with him out of the hearing of Hunter, and advised him to. take the offer for a year, small' as it was; .and accordingly Philip H. assented ; that nothing was said about a continuance of the agreement after the first year.

Daniel Minor further deposed, that he told his brother Philip, in the foregoing conversation, “ that the substance of the matter was an agreemeht confined to one year, and that the compensation would be afterwards made adequate to the services, and the value of the office; and that this was urged upon Philip as an inducement to agree to the engagement for the year; but that Hunter did not authorize the witness Daniel Minor, to promise Philip H. that he would be engaged after the first year at a higher compensation.”

Daniel Minor also deposed, that he suggested to Hunter during the. first year’s- service, that the salary of Philip H. should be increased, but Hunter declined doing so. The agreement was precise: Hunter was to pay 250 dollars, and.Daniel Minor 150 dollars,», as clerk hire, per annum; nor was the contract limited, to one year, so far as Hunter entered info it; it was general, at the rate .stipulated, for any length of time that Hunter might remain in office, or that Philip H. Minor might see proper to serve, and Hunter and Daniel Minor see proper to retain him as clerk. It is most obvious that the court and jury held Hunter bound by'what Daniel Minor promised in the absence of Hunter, apd without his-knowledge, and contrary to his consent. There, is an entire absénce of proof, that Hunter ever assented, by word or act, to raise the salary of Philip H. Minor as clerk; nor does, it appear that the latter at any time applied to Hunter ip person, and insisted, or even suggested that his salary should be increased, until February, 1847, when the letter offered in evidence was written; on the contrary,' he received the salary of 400 dollars, as at first stipulated, for fourteen years, regularly crediting himself with it on the marshal’s books, each year.

. If we reject Daniel Minor’s evidence as incompetent to bind Hunter,, so far as he used persuasions in Hunter’s absence to induce Philip H. Minor' to hope, and probably believe, that Hunter would raise his salary, then the case, as proved by the plaintiff below, rests alone on the special agreement made in 1834; and we think it must be stripped of all these conversations between Daniel Minor and his brother, to which Hunter never assented.

Nutt was sued as Hunter’s executor, for work and labor, care and diligence, done and performed by Minor in and about the business' of Hunter iri his lifetime, and at his special instance and request. -And also for sundry matters and things properly chargeable in an account therewith filed;'and on these allegations of a quantum meruit, Hunter’s estate was charged for 400 dollars per annum, in addition to the 400 dollars annually paid on the special agreement, running through the whole time of Minor’s service; and a verdict was had, andTa judgment rendered for five thousand and fifty-five dollars and seventy-three cents, against the estate, which was held responsible, regardless of the fact that Daniel Minor was bound to pay one hundred and fifty dollars of the four hundred, from April, 1834,To June, 1847, when Alexandria county was retroceded to Virginia by Congress.

On this state of facts, the court was asked to instruct the jury, (among other things) that “ if from the whole evidence aforesaid,the jury shall find that in April, 1834, the plaintiff entered into the employment of the deceased to serve him as clerk at a salary of 400 dollars for a single year, and thereafter continued to serve the said Hunter as. clerk aforesaid, dúring the whole time mentioned in said account and declaration, and that no new agreement was made between the said plaintiff and said Hunter, for a- compensation different from that which- was as aforesaid first agreed upon between them; and if they shall further find that said Hunter in his lifetime fully-paid said plaintiff .for his said services, at the rate aforesaid, then the plaintiff is not entitled to recover in this .action; which instruction the court refused to give as prayed, but did modify the same by inserting the words “ express or implied ” between the words “ agreement” and “was made.”

By thus modifying the instruction, the court told the jury, in substance, that they might find on the allegation of a quantum meruit, for work and labor done, and for services performed, and hold that an agreement to pay on Hunter’s part, might be “implied,” because of the performance of the services; and, that a verdict might be found equal to the value of such services, according to the proof, deducting therefrom the amount already paid on the special agreement; and that such agreement did not preclude the plaintiff below from recovering additional compensation, to any amount that the jury should think he was entitled to. That the instruction as given did reject the special agreement, and leave the jury free to imply a new promisé arising on the quantum meruit, for labor and services, is manifest; and therefore we are of opinion, that the instruction as propounded, ought to have been given without an addition of- the-words “ express or implied,” ,as inserted by the Circuit Court.

The letter, offered in evidence, was a plain attempt on the part of the plaintiff to make evidence for himself.- It could only be offered for the purpose of showing that Hunter was thereby notified of Minor’s unwillingness to act as clerk.after the notice, unless his compensation was increased, and that he would quit unless there was an increase; or as evidence to be .taken in connection with other subsequent proof, showing. that Hunter assented to the propositions contained in the letter. But as Hunter not only refused to sanction the-demand set up, but indignantly resisted, and resented it, the letter could be of no value to establish a new promise; nor can it be of any value as notice that additional compensation would be claimed for services rendered thereafter, because the plaintiff, with full knowledge of Hunter’s determined rejection of the claim, continued to perform his duties as clerk, and to receive his salary of 400 dollars as usual, and thereby submitted to Hunter’s assumption that the salary was governed by the special agreement made in 1834. We are of opinion that this letter should have been objected to as evidence, and the party offering it compelled by the court to state for what purpose it was offered; so that it might have been inspected and.passed on by the. court, without being read to the jury. As, however, this course was not pursued at the trial by the defendant’s counsel, and a general objection made to reading the letter for any purpose, we do not think the court erred in admitting the evidence in the first instance, although it ought certainly to have been rejected and taken from the jury, after the evidence was closed, had a motion been made to this effect, because it was unsustaincd by other evidence .that Hunter assented to the claim made by the letter. But as no motion was made to withdraw this piece of evidence, the court properly left it with the jury.

We order that the judgment of the Circuit Court be reversed, and that the cause'be remanded for another trial.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel. On consideration whereof, it is how here ordered and adjudged, by this court, that the judgment of the said Circuit Court in this cause bé, and the same is. nereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to award a venire facias de novo.