Wiedner v. National Fisheries Co.

181 N.W. 719, 173 Wis. 559, 1921 Wisc. LEXIS 66

Opinion

Vinje, J.

The allegation in the complaint that “the defendant corporation refused to accept said car of carp after the same was partly loaded, or to pay for the same,” negatives a part performance of the contract and that cannot be relied'upon to take it out of the statute of frauds. Do the telegrams themselves without the aid of parol testimony show a completed contract? The trial court held that “the telegrams of the defendant, the party sought to be charged, clearly disclose that the plaintiff is the seller and the defendant the buyer, that the property is a car of fish belonging to plaintiff which is to be shipped on January 23d, that the price is twelve cents per pound, and that the terms of payment require the immediate deposit of $500.” We cannot concur in the conclusion that the telegrams show the price to be twelve cents per pound. To reach that conclusion recourse must be had to the parol testimony that the contents of the telegram of January 21st were conveyed to plaintiff, afid then the inference would have to be drawn that plaintiff stood firm as to price. Without that parol link no one can say what terms were agreed upon. In a negotiation for the sale of an article it does not absolutely follow that an agent invested with authority to pay the asking price of the article will pay such price. The telegram of January 21st implies further negotiations as to price and there is no writing to disclose the result. For that reason an essential part of the contract, namely, the purchase price, is not in writing and the contract falls within the ban of the statute.

By the Court. — Order reversed, and cause remanded with .directions to sustain the demurrer.