Supreme Court of Canada
Martin v. Haubner, (1896) 26 S.C.R. 142
Date: 1896-03-24
John M. Martin (Defendant) Appellant;
and
Frank O. Haubner and Fritz W. Haubner (Plaintiffs) Respondents.
1896: March 2, 3; 1896: March 24.
Present: Sir Henry Strong C.J., and Taschereau, Sedgewick, King and Girouard JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Statute of frauds—Memorandum in writing—Repudiating contract by.
A writing containing a statement of all the terms of a contract for the sale of goods requisite to constitute a memo under the 17th section of the Statute of Frauds, may be used for that purpose though it repudiates the sale.
APPEAL from a decision of the Court of Appeal for Ontario, affirming the judgment of the Divisional Court in favour of the plaintiffs.
The action in this case was brought against the defendant Martin for the price of goods sold to him through his agent, one Silberstein, who was also made a defendant, the plaintiffs claiming alternatively as to him if it was found he was not Martin’s agent as the latter alleged. All the courts below held that he was an agent, and he was not a party to the appeal. The defendant Martin, besides denying the agency, averred that the goods were never delivered to him, in answer to which the plaintiffs relied upon the following letter from Martin as constituting a memorandum in writing sufficient to satisfy the Statute of Frauds:
TORONTO, 13th September, 1894.
“L.D. HAUBNER, Esq.,
“521 West 45th Street, New York.
“DEAR SIR,—In reply to yours of the 5th inst. I have to say that Mr. Silberstein only had limited instructions
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to buy certain goods, and to a certain amount only. Your draft has not been presented, and cannot be accepted, as I do not want the goods purchased by Silberstein, and they are of no use to me. I am advised that the goods are here but have not interfered with them, and they are subject to your order so far as I am concerned. The goods shown by your invoice are not what I wanted, and the amount is far in excess of the value of the goods I did want.”
“Yours truly,
JOHN M. MARTIN
The defendant claimed that as this letter repudiated the sale it could not be relied on as satisfying the statute even though it contained all the necessary terms of a memorandum in writing under it. The trial judge gave effect to this objection, but his decision was overruled by the Divisional Court and the Court of Appeal.
Robinson Q.C. and Macdonald for the appellant. To satisfy the statute the writing must expressly admit the contract by the agent or with the principal. Cooper v. Smith; Richards v. Porter. Bailey v. Sweeting is not opposed to this proposition. In that case the defendant expressly admitted the purchase and the opinions of their Lordships show that a mere recital of the contract would not suffice.
The reference to the invoice is not sufficient to identify the bargain, as the writing itself states that it does not show what the contract really was. Buxton v. Rust; Wilkinson v. Evans; are distinguishable.
W. Cassels Q.C. and W.H. Blake for the respondents. A writing may be sufficient to satisfy the
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statute though it repudiates liability. Taylor v. Smith; Buxton v. Rust.
The invoice referred to in defendant’s letter may be identified by evidence. Long v. Millar.
The judgment of the court was delivered by:
THE CHIEF JUSTICE.—Upon the question of agency I see no reason to differ from the concurrent opinions of every one of the seven learned judges before whom this case came in the several courts below.
I had, it is true, originally, some doubts, but these were entirely dispelled by the able argument of Mr. Blake, who convinced me that there was ample evidence upon which a jury, if the action had been tried before such a tribunal, might reasonably and perhaps ought to have found that fact established. Moreover, I am of opinion that after the unanimous successive findings of all the courts upon this question of fact, it ought not now to be considered open upon this third appeal.
The remaining question is as to the sufficiency of the defence based upon the Statute of Frauds. I agree with Mr. Justice Street that there was no actual receipt of the goods or any part of them sufficient to take the case out of the statute. That there was a sufficient acceptance there can be no doubt. The selection and approval of the goods by Silberstein was clearly enough for that purpose. I am unable, however, to assent to the respondents’ proposition that there was an actual receipt by Silberstein in New York when he took the goods with the respondents’ assent to deliver them to a truckman for the purpose of conveying them to the place of business of the Merchants Despatch Transportation Company by whom they were to be
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carried to Toronto. It is true that Silberstein paid the cartage, but it is also apparent from the evidence that the respondents never had the intention of parting with their property until they were actually paid the price, but on the contrary intended until then to retain their control both over the property and possession, as they showed by taking the shipping note in their own names and retaining it, thus withholding from the vendee the document of title without the production of which he could not procure delivery to himself. The intention of the parties is the proper test in such cases. Silberstein must therefore be considered as the respondents’ agent in all that he did in handling the goods in New York for the purpose of transportation.
Upon the other question, however, that on which the judgments of the learned Chief Justice of the Common Pleas and of the Court of Appeal both proceeded, namely, that there was a sufficient memorandum of the contract in writing signed by the appellant to meet the requirements of the 17th section of the Statute of Frauds, I am of opinion that the respondents must succeed in maintaining the judgment in their favour. I have no doubt but that the letter of the 13th of September is such a memorandum. That letter refers to the invoice in these words:
The goods shown by your invoice are not what I wanted, and the amount is far in excess of the value of the goods I did want.
The cases of Wilkinson v. Evans; Baumann v. James; and Taylor v. Smith, referred to in the judgment of the Chief Justice of the Common Pleas, to which may be added O’Donohoe v. Stammers, are authorities amply sufficient to warrant the introduction of evidence identifying the invoice produced as that thus referred to in the appellant’s letter. Then,
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from the invoice thus referred to, those particulars of the sale, the names of the parties vendors and vendee, the description of the goods sold and the price, which are required to be in writing signed by the party to be charged in order to come within the terms of the statute, are all plainly to be ascertained. The reference to the invoice is therefore just as effectual as if everything contained in it had been set forth in terms in the body of the appellant’s letter.
The objection to this letter as constituting a sufficient memorandum within the 17th section, upon which Mr. Justice Burton has founded his dissenting judgment, is that a writing, though containing a statement of all the terms of the contract requisite to constitute a memorandum of the contract under the statute, cannot be used for that purpose if it repudiates the sale.
Upon both authority and principle I am of opinion that this objection cannot be sustained.
The authorities, which include the cases of Wilkinson v. Evans; Bailey v. Sweeting; and Buxton v. Rust, are referred to in the judgment delivered in the Common Pleas Division; and to which may be added the cases of Leather Cloth Company v. Hieronimus; and Elliott v. Dean; are all in favour of the respondent, and it would be impossible to allow the appeal upon this point without rejecting these decisions as authorities.
The text writers who on this branch of the law have furnished us with treatises of exceptional ability are of accord in approving these decisions. Blackburn on Sales; Benjamin on Sales; Campbell on Sales.
Upon principle also it would appear clear that the correct conclusion is that arrived at by the Court of
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Appeal. Whatever opinion may have been formerly entertained, founded to some extent upon the difference in the wording of the 4th and 17th sections of the Statute of Frauds (the former section enacting that “no action shall be brought” and the latter that “no contract shall be allowed to be good”), it is now well settled, that the 17th, like the 4th section, applies only to the proof and not to the forms or solemnities of the contract. In Maddison v. Alderson, Lord Blackburn said:
I think it is now finally settled that the true construction of the Statute on Frauds, both the 4th and the 17th sections, is not to render the contracts within them void, still less illegal, but is to render the kind of evidence required indispensable when it is sought to enforce the contract.
In Britain v. Rossiter, Brett L.J. says:
In my opinion no distinction exists between the 4th and 17th sections of the statute.
See also Pollock on Contracts; Anson on Contracts.
The 17th section therefore is not to be in any way regarded as prescribing the formalities of the contracts to which it applies, but as enacting that in cases where there has been no part payment or acceptance and actual receipt the contract is only to be proved by written evidence of a particular kind, that is by a note or memorandum thereof in writing, signed by the party to be charged; in other words, by an admission of its terms in writing under the hand of the party against whom the admission is to be used. The statute therefore must be taken to have been designed to make provision for what Best, in his Treatise on Evidence, calls preconstituted proof.
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Then, if this view is correct, it must follow that any form of admission, provided it contains all that the statute requires, which before the statute would have been admissible if made by parol, must still be admissible if it is in writing and signed by the party making it. Now, irrespective of the statute, it can scarcely be doubted that a statement by a party sued as a vendee of goods, to the effect that an alleged agent of the vendee had agreed to purchase from the vendor certain goods for a certain price, would be admissible as evidence against the vendee, although coupled with a repudiation of the authority of the alleged agent, and would be binding on him upon the agency being proved aliunde. No doubt the whole conversation in which such a statement might occur might be brought out by the party making the admission, but the repudiation of the agency could not be conclusive, and it would be open to the other party to controvert it by other evidence, and there could be no possible reason why the admissions made by the party to his own prejudice should not be used against him because coupled with a denial of his liability. If this could be done irrespective of the statute, then that enactment by requiring the admission to be in writing cannot have altered the law of evidence as to the admissibility and effect of admissions, which must be the same whether applied to written evidence required by the statute or to parol admissions in cases to which the statute is inapplicable.
The appeal must be dismissed with costs.
Appeal dismissed with costs.
Solicitors for the appellant: Macdonald & Cronyn.
Solicitors for the respondents: Blake, Lash & Cassels.
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