DODGE v. VAN LEAR, 7 F. Cas. 800

But THE COURT (CRANCH, Chief Judge, contra.) refused to give the instruction; and at the prayer of the plaintiff’s counsel, Mr.

Marbury, instructed the jury, “that if they believe, from the evidence, that on the 30th of March, 1S35. the defendant contracted with the plaintiff to sell to him one thousand barrels of flour at $4.75 per barrel, to be delivered. half on the 20th and the residue on the 30th of April thereafter, and that the plaintiff, in the presence of the defendant, and with the intent to reduce the terms of the said contract to writing, made an entry in his book, in the words following,” (as before stated) “and read the same to the said defendant, who assented to the correctness of the said entry; and that the said defendant afterwards addressed letters to the plaintiff, signed by him, referring to the said contract;” (see the letters of the defendant to the plaintiff, of the 6th of April and 7th of May, 1835. as above recited,) “it is competent for the jury to connect the said letters with the written entry; and the same, taken together, constitute legal and valid evidence of a written contract in conformity with the requisitions of the statute of frauds.” CRANCH, Chief Judge, stated his opinion to be that the case was within the statute of frauds and perjuries.

The plaintiff's memorandum in his book is not signed by any one, and the, defendant’s assent to it is only proved by oral testimony; so that, without the letters, the case is clearly within the statute. The letters do not contain the whole contract, nor do they refer to the written memorandum in the plaintiff's book; with which the letters cannot be connected without parol testimony. 2 Kent, Comm. 511.

THE COURT further instructed the jury, at- the prayer of the plaintiff’s counsel, “that if they believed, from the evidence, that the defendant, residing and carrying on the business of a miller, at Williamsport, in the state of Maryland, -contracted, on the 30th of March. 1835, to sell to the plaintiff one thousand barrels of hour, at $4.75 per barrel, and to deliver the same at Georgetown, on the 20th and 30th April next thereafter; and that afterwards, at the request of the defendant, and in consequence of a breach or breaches in the canal, the plaintiff agreed to extend the time for the delivery of the said flour, to the 5th and 15th day of May next thereafter, and that the defendant neglected and refused to deliver the said flour at the ■said last-mentioned times, then the plaintiff is entitled to recover in this action, although the jury should believe that the navigation of the said canal was much obstructed during the spring of the year 1S35, and the defendant was put to inconvenience and difficulty in executing his said contract by reason thereof.” CRANCH, Chief Judge, observed that, as the court had overruled his opinion that the evidence was not sufficient to take the case out of the statute of frauds, he concurred in the present instruction.

The defendant's counsel, Mr. R. J. Brent, then prayed the court to instruct the jury, “that if they believe, from the evidence, that the whole of the one thousand barrels of flour, or any part thereof, was (Qu. ? not) on hand at the time of entering into the alleged contract, then the entire contract is void, and the plaintiff is not entitled to recover.” Which instruction THE COURT refused to give.

Whereupon the defendant’s counsel further prayed the court to instruct the jury, “that if they believe that Davidson and Dodge were parties in the original, or any substituted, contract, then the plaintiff is not tentitled to recover.” Which instruction THE COURT also refused to give. The defendant’s counsel then moved the court to instruct the jury, that there is no evidence of a contract to' deliver five hundred barrels of flour on the 5th, and five hundred on the loth of May, as charged in the declaration. Which instruction THE COURT (THRUSTON, Circuit Judge, contra) also refused to give.

CRANCH, Chief Judge, concurred in this refusal; his opinion in respect to the statute of frauds having been overruled by THE COURT, as aforesaid. To these refusals of the court to instruct the jury, as prayed by the defendant’s counsel, and to the instructions given at the prayer of the plaintiff’s counsel, the defendant took a bill of exceptions. The jury found a verdict, in favor of the plaintiff, $(581.20.

The defendant took a bill of exceptions, and, it is understood, applied to one of the justices of the supreme court for a writ of error, (which he could not have, as a matter of right, because the verdict was for less that $1,000,) but the justice refused to award it.