Daniel Draper vs. Joseph Pattina.
1. On the receipt of a letter by a commission merchant, covering a bill of lading, and invoice of sixty boxes of lemons, to whom they were consigned for sale, a sale was effected, and a memorandum of it made in pencil on the invoice subjoined to the bill of lading, in the presence of the buyer, and by his authority.. Thus, “Sold to J. P. at $2,00 per box."
2. On the arrival of the lemons, and notice, the purchaser refused to receive them.
3. It was held that the memorandum made by the commission merchant was sufficient to satisfy the Statute of Frauds.
4 The memorandum shewed the sale with reasonable certainty, without the necessity of mere verbal evidence.
5. A debit made in the books of the commission merchant did not lessen the written memorandum, which was intelligible without the books.
Before lxis Hon. Judge King, Recorder, in the City Court of Charleston, April Term, 1843.
This was an action on a process in assumpsit to recover a balance due on a consignment of lemonons, alledged to have been sold to defendant, on account of the plaintiff.
• Mr. Mowry stated, that he had received a letter, which he produced, of the 6th of June, 1842, from Mr. Draper, covering a bill of lading and invoice of 60 boxes of lemons, in fine order. On the very day he received the letter, he met the defendant Pattina. Lemons were then scarce. He came into witness’s store — called next morning and took the lemons at $2 per box, he being to run all risks. The letter was read twice; and the memorandum, “sold to Joseph Pattina, at $2 per box,” in pencil on the invoice subjoined to the bill of lading, was made by the witness at the time, in the presence of Mr. Pattina, and by his authority. The lemons arrived 20 days after. Lemons became more plentiful before the vessel arrived. As soon as the lemons were landed, witness sent his son to notify Pattina, and his son came back and said Pattina refused to take them. They were then sold at auction.
The witness has no interest, except his commissions for selling.
Cross examined. — The goods were consigned to him— *293he brought an action in his own name to recover. The entry is. made in his books' — he read the letter twice to Mr. Pattina: he did not tell Pattina when the vessel was to sail. When the vessel arrived, some of the lemons were unsound. Pattina agreed to take them. He saw the memorandum. The witness is altogether a commission merchant.
Leiois D. Mowry. — The lemons were sold to Pattina at $2 per box. He was to take all risks and have them wThen they arrived. The entry is made in the books as all entries are made. (The entry in the books of S. Mowry, charges the lemons to Joseph Pattina.) When the lemons arrived, my (the witness’s) father sent me to tell Mr. Pattina, that they were at his risk on the wharf. He-refused to receive them. I was sent back to tell him that if he did not receive them they would be sold on his account and risk. An account of this sale was rendered to Pattina.
Cross, examined. — When the lemons were landed, I informed Pattina that they were on the wharf. We shortly after sent them to vendue. I do not know how many boxes were landed, but some were landed. I saw Pattina twice about them. 1 do not know when they were sold.
J. C. Blum. — Sold 60 boxes of lemons. They brought $28,25. One of the fruiterers bought a large portion of the lot. Lemons were then plentiful. A large quantity had arrived a few days before the sale. Some few were bad, and some very good. We (Blum <fc Cobia) sold and delivered 60 Boxes. They were advertised regularly. There were four advertisements.
The entry was produced from Mowry’s books, dated 11th July, 1842.
S. Mowry examined. The lemons were landed before the witness sent his son (Lewis D. Mowry) up to defendant. I (witness) have always made it my custom to notify purchasers when goods were landed on the wharves, and this I have considered a delivery, and have always done business in this way. I never send articles up unless I have a special order.
Cross examined. — When goods arrive and are not removed, they are stored on account of the party, if left out *294all night. I do not think that I should have stored them. Here the evidence closed.
Copy of Letter.
Boston, June 6th, 1842.
S. Mowry, Jr. Esq.
SIR — Yours of 16th May, came duly with sales of 75 boxes lemons per Congaree, net proceed of sales, deducting cost of Check, $235,04, for which I have Check on New York, balancing the amount.
I now enclose bill of lading and invoice of sixty boxes of lemons in prime order. There is no mistake, but as a vessel is expected to go to Charleston direct from Sicily, and may be soon looked for, I wish you to sell this to arrive, if possible, and not to warrant them, so as to have no backing out,
Yours, <fec.
DANIEL DRAPER.
The bill of lading is subjoined, at the foot of which, in pencil mark, is the following Memorandum: “Sold to Joseph Pattina,
$2 per box.”
Copy of Bill of Lading.
Shipped in good order and condition, by Daniel Draper, on board the good ship called the Lucas, whereof — is master for this present voyage, now lying in the port of Boston, sixty boxes lemons, being marked and numbered as in the margin, to be delivered in like good order and condition at the aforesaid port of Charleston (the danger of the sea only excepted) unto S. Mowry Jr. or to his assigns, he or they paying freight for the said goods fifteen cents per box, with primage and average accustomed. In witness whereof the master of said vessel hath affirmed to three bills of lading, all of this tenor and date, one of which being accomplished the others to stand void.
Dated at Boston, June 4th. 1842.
Signed for the Master,
GEO. LOMBARD.
Mr. Seymour, for the defendant, contended that the defendant was not liable under the St. of Frauds, sec. 17, 2 *295St. L. 528. “From and after the said 24th day of June, (1672,) no contract for the sale of any goods, wares or merchandises, for the price of £10 sterling, or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or a part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged with such contract, or their agents thereto legally authorised.” That in this case there was no delivery, nor ho memorandum in writing within the statute to bind the defendant.
Mr. Rice, for the plaintiff, contended that this was a sale by a broker or commission Merchant for the plaintiff — that there was an actual delivery to the defendant — that the landing on the wharf and notice to the defendant was equivalent to a delivery, and was in truth a delivery.
That if there was no delivery, there was a memorandum m writing sufficient to bind the defendant within the Statute; and he quoted a number of authorities in support of this position. Chit, on Cont. 114, 115. Saunderson vs. Jackson, 2d Bos. and Pul. 238. Hinds vs. Whitehouse, 7 East, 550. Schneider vs. Morris, 2 Maul, and Sel. 286, <&C.
In this case, the Court considered, that while it was bound not to encroach in any manner on the provision of the statute of frauds, yet the statute was to be construed by the decisions of our Courts, so as, if possible, to obey the statute, and protect the integrity and good faith of contracts. The memorandum of the sale insisted on for the plaintiff, and on which the judgment of the Court was founded, was made by the broker or commission merchant, himself employed by the plaintiff to sell the lemons, on the invoice of them, which set forth the quantity, and w^s attached to the bill of lading, and formed a part of the same paper w7hich contained the letter of consignment and bill of lading from the plaintiff The memorandum is. in these words: “Sold to Joseph Pattina, ¡|2 per box.”
It seems to be well settled that the broker or commission merchant, when a sale is effected, is the agent of both the buyer and the seller; Rucker vs. Cammeyer, 1 Esp. Rep. 105. Simon vs. Motivos, 3 Bur. 1921. Hinds vs. White-
*296
house, 7 East, 556; Jenkins vs. Hogg, 2 Tread. Const. 121 ; and is authorised to enter the buyer’s name in a memorandum by which he will be bound. It makes no difference that the memorandum is in pencil. A will in pencil may be good ; Byrnes vs. Clarkson, 1 Phil. 22; Dickson vs. Dicksoni; 2 Phil. 175. It may be argued, that the plaintiff was not bound by this contract, and that therefore the defendant was not. But the memorandum is endorsed on the plaintiff's own letter accompanying the goods, and prefixed to the invoice, saying, they were consigned for sale, and by this the plaintiff would be bound. But if he were not, still the defendant would be bound. Lord Hardwicke says, (Blockhouse vs. Mohun, 3 Swans. 434, 435; 2 Eng. Ca. Ab. 32, pi. 44.) “Many cases have occurred where agreements for lands, appearing in writing under the hand of the party who was to be bound by it, (which are the words of the Stat.) notwithstanding there was no writing of the other part, have been carried into execution.” Here the broker says expressly he was authorized by the defendant to make this memorandum. It seemed to the Court to be stronger for the plaintiff than the cases of Merrit vs. Ciasen, 12 John. 102; Ciasen vs. Baily, 14 John. 484. The articles sold, 60 boxes lemons to Joseph Pattina, $2 per box, subjoined to the plaintiff’s letter and bill of lading, leave little room to doubt the contract of the parties. The Court decreed for the plaintiff the balance due on his account, and was served with the accompanying notice of appeal.
1. That the writing on the bill, of lading was not such a memorandum in writing, as would take the case out of the statute of frauds.
2. That the decree in other respects was contrary to law and evidence.
Thompson, for the motion.
Cited 2 Leigh’s N. P. 1060 ; 3 Barn. & Aid. 34.
Rice, contra.
Cited 2 Kent Com. 510.