79 N.Y.S. 299 | N.Y. App. Div. | 1902
These appeals are, first, by the defendant from an order entered as a separate order, denying its motion for a nonsuit made during the course of the trial, and, second, by the plaintiff from an order setting aside a verdict of a jury in his favor in an action brought to recover damages for the alleged violation of a contract which he claims had been entered into between him and the defendant.
The appeal from the first-mentioned- order must be dismissed, with costs. We know of no practice which authorizes the entry of' such an order. The disposition of a motion made for a nonsuit during the progress of a trial is a part of the trial, and the correctness of the ruling of the court in refusing or granting a nonsuit, must be brought up for review by appeal from the judgment or upon a motion for a new trial.
The order setting aside the verdict of the jury must be affirmed for the reason stated in the opinion of the trial judge in granting the defendant’s motion for a new trial, namely, that the proof failed to show that a completed contract between the parties was entered into. The learned trial judge submitted to the jury two questions which were answered, and a general verdict was rendered in favor of the plaintiff. That method of submission does not militate against the power of the court to set aside a verdict for the reason assigned by the trial judge. That the plaintiff and the defendant, through its agent, Mr. Kersey, entered into negotiations for a contract by which the plaintiff sought to secure space in the steamships of the defendant for the transportation of cattle across the Atlantic.
Thus far, it appears from the plaintiff’s own testimony that no contract was agreed on. Some terms were discussed, but neither party was bound by that discussion, and it is obvious that neither intended to be bound by it and that a writing would be required to make a binding obligation. Nothing was agreed upon as to the actual maximum or minimum numbers of cattle to be shipped, or as to shipments by the passenger steamer Cymric, or as to dead
“New York, Oct. 25th, 1897.
“ W. W. Brauer,
“ Auditorium Annex, Chicago :
“ Am ready to close all White Star steamers carrying cattle December first, 1897, to November 30th, 1898, inclusive 42/6 insured. Maximum numbers our call subject to your giving satisfactory guarantee, Liverpool, November 15th, but decline positively pay demurrage subject to reply by noon to-morrow, Tuesday.
“H. MAITLAND KERSEY.”
“ Dated Chicago, III., Oct. 26.
“ To H. Maitland Kersey,
“ White Star Line, Broadway:
“ Accept your proposition,' confirm closing your boats for one - year.
“BRAUER.”
“ Dated New York, Oct. 26.
“ To W. W. Brauer,
“ Aud. Annex:
“ Message received. Consider space closed.
“H. MAITLAND KERSEY.”
“ Dated Chicago, Ills., 27.
“ To H. Maitland Kersey,
“ White Star Line, New York:
“ Leaving to-morrow for York via Baltimore, will call for contract Saturday morning, probably sailing .Lucania.
“ (Signed) BRAUER.”
This telegraphic correspondence does not constitute a final contract between the parties. Kersey informed the plaintiff by the telegram dated October twenty-fifth that he was ready to close a contract for the White Star steamers carryvng cattle' at a price of forty-two shillings and six pence, with the right to the defendant to fix the maximum number of cattle to be carried. Brauer’s answer is an acceptance of the proposition, and, so far as the price and the other matters referred to in Kersey’s telegram are concerned, there
We cannot read into these telegrams all the detail referred to by the plaintiff as having been matters of discussion with Kersey before the plaintiff went to Chicago, and it is quite plain, from the action of the plaintiff on his return from that city, that he understood that a final binding contract had not been made, and that the telegrams related only to those terms which were specifically mentioned in the first telegram sent by Kersey to the plaintiff at Chicago. According to the plaintiff’s own testimony, a written contract was to be executed, not WiUiami contract, as he said, but his own brokers’ contract, and when, on his return from Chicago, he applied to Kersey for a contract the subject of all the terms was yet unsettled. While the plaintiff says that he insisted upon the contract made by the telegrams, it is simply impossible to believe that he ever supposed that a contract of such a character, with so much detail, with so many matters to be covered fixing rights and obligations and liabilities, was simply to be left in the air, the four telegrams constituting a complete contract, while all the other matters of detail talked over in antecedent negotiations were to rest merely in an oral agreement. Unquestionably, it is a rule of law that a stipulation to reduce a valid contract to some other form does not affect its validity, and if the contract is in any form the stipulation may not be used by either of the parties for the purpose of imposing upon the other different obligations, or of evading the performance of any of the provisions of the contract, and, as was held in Sanders v. P. B. F. Co. (144 N. Y. 209), the rule applies
The case is, therefore, one in which the feature is presented of negotiations for an, agreement, some of the terms of which are agreed upon, but others of which still remain unsettled. Those agreed upon are partly in writing and partly oral, but both parties intended that the whole agreement, both as to the settled terms and those not yet agreed upon, should be compacted and put together in one writing which should be executed and delivered before it became obligatory upon either.
That consideration, we think, takes this out of the rule laid down in the cases above cited. We do not intend to decide, that an oral agreement, complete and distinct in all its terms, and not affected by the Statute of Frauds, which the parties anticipate shall be reduced to writing, is not enforcible merely because of the omission of the formality of reducing it to writing. But that is not this case.
We think the action of the trial judge in setting aside the verdict was right.
The appeal from the order denying motion for nonsuit is dismissed, with costs, and the order setting aside the verdict is affirmed, with costs.
Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred ; Laughlin, J., dissented.
Appeal from • order denying motion for nonsuit dismissed, with costs, and order setting aside verdict affirmed, with costs.