135 N.Y.S. 1094 | N.Y. App. Term. | 1912
Plaintiff sues upon a contract made on or about the 7th day of Hay, 1907. On that day the plaintiff wrote and mailed to the defendants the following letter:
"May 1th, 1909.
“ F. Kieser & Son :
“ Dear Sirs.— I beg to confirm my sale to you to-day: 10 m. Bus. Standard wht. oats, at 58% cents per bushel. O. I. F. Haverstraw, Erie.
“ Shipment, July.
“To be billed.
“ Western official certificates of weight and grade final. Draft payable at sight with proper documents attached. Excluding date of sale, time of shipment dates from receipt of full shipping instructions and excludes Sundays and legal holidays. Terms in this contract final. If not correct, advise me at once.
“ In writing or wiring
“ please refer to
“Albert O. Field, Inc.,
“ by A. O. Field, Pres/*
It was shown at the trial that it is the usage in the grain trade to send a letter of similar form “ on the evening of the day when you had a transaction about the grain to the person you had a contract with. It is also the custom and usage of the trade that, if no advice is received from the party you have sent it to, the contract mailed is adopted as the written contract between the parties.” Ho answer was received to this letter, and the plaintiff shipped the grain at the end of July. On August second, the defendants telegraphed to plaintiff: “ Ho delivery made on July oats contract ten thousand bushels consider same cancelled.” The
In the case of Brauer v. Oceanic Steam Navigation Co., 178 N. Y. 334, 339, it was said “ that a note or memorandum sufficient to take a contract out of the operation of the Statute of Frauds must state the whole contract with reasonable certainty so that the substance thereof may be made to appear from the record itself without regard to parol evidence.” This rule, however, does not mean that extrinsic evidence may not be given, for the purpose of identifying an object named in the memorandum (Waring v. Ayres, 40 N. Y. 357), and it is well established that, where one memorandum is imputed by reference or annexation into another one, evidence of the identity of the memorandum referred to may be supplied by parol. Abb. Tr. Ev. (2d ed.) 358-359. This parol evidence must, of course, be sufficient to identify this memorandum clearly, leaving no room for a fair dispute as to the contract referred to. In this case, I think the evidence is amply sufficient for the purpose. The uncontradicted proof shows that, on August second, the plaintiff had no other transaction with the defendants than the' sale of ten thousand bushels of July oats, as set forth in the complaint; that a letter setting forth the terms of the sale in writing was mailed to the defendants, and presumably received by them; that this letter was never answered; that it was denominated a “ contract,” and that,
Judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
Seabuby and Bijub, JJ., concur.
Judgment reversed.