Bodenheimer v. Mary Planting & Manufacturing Co.

CONCURRING OPINION.

MOORE, J.

I dq not understand that there is any place in the instant case for the application of the well settled proposition of law, and which, so far I am advised, no one disputes, that where the parties to a contract agree that it shall be reduced to writing this agreement becomes a part of the contract and, until it is ful-filled, the contract itself is incomplete, and that this rule is not restricted to executory agreements but apply as well, to agreements partly carried out.

There is not the slightest reference in plaintiff’s petition that the dontract declared on is in writing or that it was- the intention of the parties that the contract should be in writing unless it be that the document annexed to the petition which is referred to therein, “as the said contract of sale” can be taken as an averment of the existence of a written contract.

I, of. course, understand the rule with reference to documents annexed to a petition to be that it controls the allegations of the petition. The document annexed to the petition and which the petition avers “will more fully” show the contract alleged to be existing between the parties is as follows:

New Orleans, La, Sept 30th, 1901.
SOLD — To Messrs Bodenheimer & Bro., of New Orleans, La., the molasses product of the “Mary Plantation” property of Henry S Crozier, Planter, consisting of about twelve hundred (1200) barrels' at 2% cents per gallon net to the Planter, free on board Plantation. The purchasers agree to pay the Planter’s Distributing Co., Ltd., ten cents (10c) per barrel brokerage.
Terms of sale — Net cash on presentation of gauger’s certificates stamped. “The Planters Dist Co. Ltd.”
Sec.-Treas.

This document standing by itself does not in my opinion, es*139tablish the existence of any contract whatsoever, not because it is a writing unsigned, and still less because it evidences an agreement to reduce the contract to writing.

February 8, 1904.

In my opinion the document is nothing more nor less than a mere bill, like might be made out by any merchant, or at most, or may be most likely, simply a written proposition or offer to sell, which may be accepted by the party to whom the offer is made, either verbally or in writing, or tacitly by availing himself of the offer made by accepting the goods, as in this case, offered for sale in writing. So regarding the document and coupling it with the allegations of plaintiff that they availed themselves thereof by receiving a part of the goods offered for sale, I think a proper cause of action is shown and therefore I concur with my brother Beauregard in the decree this day handed down.