Bodenheimer v. Mary Planting & Manufacturing Co.

1 Teiss. 136, 1904 La. App. LEXIS 24

• Court: Louisiana Court of Appeal
• Decided: February 8, 1904
• Docket: No. 3218
• Status: Published

Opinions

ON THE REHEARING.

BEAUREGARD, J.

The parties litigant stand, in this case on the same grounds originally urged to-wit: Defendant Company on the fact that plaintiffs were suing on a written contract unsigned. Plaintiffs, that the allegations of their petition, with the written private agreement annexed thereto were sufficient to give them a cause of action.

The decree of the lower court based on the decision of 106 Lá. 310 Ferre Canal Co. vs Burgin, sustained defendant’s exception of no cause of action dismissing plaintiff’s suit, on the ground that “the document sued on, purporting to be one under private signature was in fact signed by no one,” although it bore stencilled signature of defendant Co’s, agents. And further, that even this sten-cilled signature lacked that of its Secreta^-Treasurer, which in the intendment of the parties was required, and that, this lacking there was no signature to the written contract declared on.

There can be no question as to the legal requirements that an act sous sehigprive should be signed by the parties thereto. R. C. C. 2241.

But where (the signature of one of the parties lacking) assent has been manifested by the partial execution of the agreement, especially by the obligor (the seller of goods in this case) and the bill of sale is within the possession of the obligee, the purchaser who has received a part of the goods sold, and it maybe said: on account, would it not be against good conscience to permit the seller to recede from an agreement under-the protection of a technicality; because forsooth the fulfillment of his agreement may not prove to his interest?

It is urged that it was within the contemplation of the parties that the agreement sued on should have borne their respective signatures. Why should it not be equally inferred that the parties considered the agreement, as it stood, sufficient; and that it was not contemplated by them to be open to any further formality?

Both are inferences; the former weaker than the second which rests on facts i. e. partial delivery.

The syllabus of the opinion in 23 A. 572 Balch vs Young is as follows:

“The law does not require the acceptance of a contract to be expressed on its face, nor is it essential that the act (one of sale here) be signed by the party in whose favor it is made. The acceptance may result from his acts in availing himself of its stipulations, or in doing some act which indicates its acceptance. R. C. C. 1811.

In the case at bar, it is averred that under the agreement as it stood and annexed to the petition, 200 barrels of the 1200 barrels of molasses sold had been delivered. Would not this amount to a knowledge waiver and ratification of the agreement however defective it might have been in form. And dispensing with the further signature of the Secretary-Treasurer of defendant Company’s agent; the Planters Dist. Co. Ltd. whose stenciled signature appears to the agreement.

It may — on the test of the question of agency — be shown that defendant Company’s agent had not the right to bind their principal, which question appertains to the merits. Ostensibly they had that power on the face of the papers, since execution followed the agreement they had signed; in spite of the absence of the signature of the Secretary-Treasurer.

As understood: In the Ferre Canal Co. 106 La. 310, the Court drew its inference, as to the contemplation of the parties to reduce their mutual contract or agreement to writing from the facts of the case and in view of negotiations contemplating their written contracts to be signed by the parties.

In this case no such negotiations were pending and presumable, unless based on an assumption justifying the bare urging of an exception of no cause of action.

This Court fails to see any good reason warranting a reversal of its original decree which it is ordered must remain undisturbed,