305 N.Y. 48 | NY | 1953
In September of 1947, Nate Crabtree entered into preliminary negotiations with Elizabeth Arden Sales Corporation, manufacturers and sellers of cosmetics, looking toward his employment as sales manager. Interviewed on September 26th, by Robert P. Johns, executive vice-president and general manager of the corporation, who had apprised him of the possible opening, Crabtree requested a three-year contract at
‘ ‘ Employment Agreement with
Nate Cbabtbee Date Sept 26-1947
At 681 — 5th Ave 6: PM
* * #
Begin 20000.
6 months 25000.
6 “ 30000.
5000. — per year
Expense money
[ 2 years to make good]
Arrangement with Mr Crabtree
By Miss Arden
Present Miss Arden
Mr John
Mr Crabtree
Miss OLeary ”
A few days later, Crabtree ’phoned Mr. Johns and telegraphed Miss Arden; he accepted the “ invitation to join the Arden organization ”, and Miss Arden wired back her “ welcome ”. When he reported for work, a “ pay-roll change ” card was made up and initialed by Mr. Johns, and then forwarded to the payroll department. Reciting that it was prepared on September 30, 1947, and was to be effective as of October 22d, it
“ First six months of employment $20,000. per annum
Next six months of employment 25,000. “ “
After one year of employment 30,000. “ “
Approved by EPJ [initialed] ”
After six months of employment, Crabtree received the scheduled increase from $20,000 to $25,000, but the further specified increase at the end of the year was not paid. Both Mr. Johns and the comptroller of the corporation, Mr. Carstens, told Crab-tree that they would attempt to straighten out the matter with Miss Arden, and, with that in mind, the comptroller prepared another 11 pay-roll change ’ ’ card, to which his signature is appended, noting that there was to be a “ Salary increase ” from $25,000 to $30,000 a year,
At the ensuing trial, defendant denied the existence of any agreement to employ plaintiff for two years, and further contended that, even if one had been made, the statute of frauds barred its enforcement. The trial court found against defendant on both issues and awarded plaintiff damages of about $14,000, and the Appellate Division, two justices dissenting, affirmed. Since the contract relied upon was not to be performed within a year, the primary question for decision is whether there was a memorandum of its terms, subscribed by defendant, to satisfy the statute of frauds (Personal Property Law, § 31).
Each of the two payroll cards — the one initialed by defendant’s general manager, the other signed by its comptroller — unquestionably constitutes a memorandum under the statute. That they were not prepared or- signed with the intention of evidencing the contract, or that they came into existence subse
The statute of frauds does not require the “ memorandum * * * to be in one document. It may be pieced together out of separate writings, connected with one another either expressly or by the internal evidence of subject matter and occasion ”. (Marks v. Cowdin, supra, 226 N. Y. 138,145; see, also, 2 Williston, op. cit., p. 1671; Restatement, Contracts, § 208, subd. [a].) Where each of the separate writings has been subscribed by the party to be charged, little if any difficulty is encountered. (See, e.g., Marks v. Cowdin, supra, 226 N. Y. 138, 144-145.) Where, however, some writings have been signed, and others have not — as in the case before us — there is basic disagreement as to what constitutes a sufficient connection permitting the unsigned papers to be considered as part of the statutory memorandum. The courts of some jurisdictions insist that there be a reference, of varying degrees of specificity, in the signed writing to that unsigned, and, if there is no such reference, they refuse to permit consideration of the latter in determining whether the memorandum satisfies the statute. (See, e.g., Osborn v. Phelps, 19 Conn. 63; Hewitt Grain & Provision Co. v. Spear, 222 Mich. 608.) That conclusion is based upon a construe
The view last expressed impresses us as the more sound, and, indeed — although several of our cases appear to have gone the other way (see, e.g., Newbery v. Wall, 65 N. Y. 484; Wilson v. Lewiston Mill Co., 150 N. Y. 314) — this court has on a number of occasions approved the rule, and we now definitively adopt it, permitting the signed and unsigned writings „ to be read together, provided that they clearly refer to the same subject matter or transaction. (See, e.g., Peabody v. Speyers, 56 N. Y. 230; Raubitschek v. Blank, 80 N. Y. 478; Peck v. Vandemark, 99 N. Y. 29; Coe v. Tough, 116 N. Y. 273; Delaware Mills v. Carpenter Bros., 235 N. Y. 537, affg. 200 App. Div. 324.)
The language of the statute — ‘ ‘ Every agreement * ® * is void, unless =": * * some note or memorandum thereof be in writing, and subscribed by the party to be charged (Personal Property Law, § 31) — does not impose the requirement that the signed acknowledgment of the contract must appear from the writings alone, unaided by oral testimony. The danger of fraud and perjury, generally attendant upon the admission of paroi evidence, is at a minimum in a case such as this. None of the terms of the contract are supplied by paroi. All of them must be set out in the vari
• Turning to the writings in the case before us — the unsigned office memo, the payroll change form initialed by the general manager Johns, and the paper signed by the comptroller Carstens — it is apparent, and most patently, that all three refer on their face to the same transaction. The parties, the position to be filled by plaintiff, the salary to be paid him, are all identically set forth; it is hardly possible that such detailed information could refer to another or a different agreement. Even more, the card signed by Carstens notes
The corroborative evidence of defendant’s assent to the contents of the unsigned office memorandum is also convincing. Prepared by defendant’s agent, Miss Arden’s personal secretary, there is little likelihood that that paper was fraudulently manufactured or that defendant had not assented to its contents. Furthermore, the evidence as to the conduct of the parties at the time it was prepared persuasively demonstrates defendant’s assent to its terms. Under such circumstances, the courts below were fully justified in finding that the three papers constituted the “ memorandum ” of their agreement within the meaning of the statute.
Nor can there be any doubt that the memorandum contains all of the essential terms of the contract. (See N. E. D. Holding Co. v. McKinley, 246 N. Y. 40; Friedman & Co. v. Newman, 255 N. Y. 340.) Only one term, the length of the employment, is in dispute. The September 26th office memorandum contains the notation, “ 2 years to make good What purpose, other than to denote the length of the contract term, such a notation could have, is hard to imagine. Without it, the employment would be at will (see Martin v. New York Life Ins. Co., 148 N. Y. 117, 121), and its inclusion may not be treated as meaningless or purposeless. Quite obviously, as the courts below decided, the phrase signifies that the parties agreed to a term, a certain and definite term, of two years, after which, if plaintiff did not “ make good ”, he would be subject to discharge. And examination of other parts of the memorandum supports that construction. Throughout the writings, a scale of wages, increasing plaintiff’s salary periodically, is set out; that type of arrangement is hardly consistent with the hypothesis that the employment was meant to be at will. The most that may be argued from defendant’s standpoint is that “ 2 years to make good ”, is a cryptic and ambiguous statement. But, in such a case, paroi evidence is admissible to explain its meaning. (See Martocci v. Greater New York Brewery, 301 N. Y. 57, 63; Marks
The judgment should be affirmed, with costs.
Loughran, Ch. J., Lewis, Conway, Desmond, Dye and Froessel, JJ., concur.
Judgment affirmed.
. While our opinion is limited to treatment of that question, we have, of course, considered the other points argued.