176 A.D. 756 | N.Y. App. Div. | 1917
Lead Opinion
The contract here sought to be enforced is a contract to sell to the plaintiff upon the 11th day of August, 1914,10,000 bags of sugar at two and nine-thirty-seconds cents per pound. The defendants plead the invalidity of the contract under the Statute of Frauds. The facts of the case, as must be assumed upon the dismissal of plaintiff’s complaint, are that the plaintiff sold to the defendants 10,000 bags of sugar at the market price of two and nine-thirty-seconds cents per pound upon the third day of August, upon the promise of the defendants here sued upon to sell to the plaintiff a like amount of sugar at the same price within ten days thereafter, as might be demanded by the plaintiff. The Statute of Frauds upon which the defendants rely is found in section 85 of the Personal Property Law (Oonsol. Laws, chap. 41; Laws of 1909, chap. 45), as added by chapter 571 of the Laws of 1911. Subdivision 1 of that statute applicable to the facts of the case at bar reads as follows: “ A contract to sell or a sale of any goods or choses in action of the value of fifty dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses'in action so contracted to be sold or sold, and actually receive the same; or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf. ” It is not claimed here that any of these goods have been delivered or accepted by the
It is further contended that the writings in this case may, when considered together, answer the requirement of the statute. This is based upon a letter written to the defendants by the plaintiff upon August third, as follows:
“Messrs. Arbuckle Brothers,
“ Old Slip & Water Street,
“New York City:
“Dear Sirs.— We have advised Messrs. Francke, Hijos & Company to deliver to you 10,000 bags Centrifugals expected to arrive within the next few days per S/S ‘Syndic.’ As per agreement with your Mr. Kennedy these are to be held for later return.”
That was O. K.’d by some agent of the defendants. The difficulty with the appellant’s contention is that there is nothing in writing to indicate what was the agreement with Mr. Kennedy, nor is there in the paper itself anything to indicate what date could be supplied for the “later return,” specified in the letter.
The judgment should be affirmed, with costs.
Clarke, P. J., and Shearn, J., concurred; Laughlin and Dowling, JJ., dissented.
Dissenting Opinion
The complaint herein is framed upon the theory of one contract between the plaintiff and defendants by which the plaintiff agreed to deliver to defendants 10,000 bags of sugar (expected to arrive at the port of New York within a few days after August 3, 1914), in consideration whereof the defendants were to pay therefor at the rate of two and ninerthirtyseconds cents per pound, cost and freight, and as a part of the same transaction, and in further consideration of such promise on plaintiff’s part, defendants agreed to replace said sugar within a reasonable time thereafter by delivering to the plaintiff an equal amount of sugar (to arrive by steamer to be later designated by the defendants) at the same price of two and nine-thirty-seconds cents per pound, cost and freight, plaintiff agreeing to accept delivery thereof and to pay for the same at that price. It is alleged that the plaintiff caused the 10,000 bags of sugar to be delivered to the defendants on or about August 5, 1914, the date of arrival, for which the defendants paid; that thereafter the same number of bags of sugar were on August 11, 1914, -designated by defendants for delivery to plaintiff, then being en route or about to be shipped by the steamship Vigilancia; that when the steamship arrived on August 17, 1914, the plaintiff demanded the delivery to him of the said sugar, which the defendants refused • to do and repudiated their agreement, although the plaintiff was ready, able and willing to perform the terms of the agreement on his part; all to his damage in the sum of $105,000.
The complaint having been dismissed at the close of the plaintiff’s case, the view of the facts most favorable to him must be taken. Having introduced testimony establishing the cause of action set forth in the complaint, the plaintiff also showed that the transaction in question was not pnique or extraordinary in the "sugar business, but one having a definite trade existence, and known as “switching,” whereby a party having sugar ready for delivery is willing to exchange it for sugar to arrive later, the party with whom he contracts having immediate use for the sugar, and he himself desiring to use the same amount later. By this practice those who need the goods at once are able to get them at a fixed price, mutually
statute by acceptance and actual receipt of part of the goods or by part payment makes the entire bargain of the parties enforceable, even though the bargain contains as a part of it another agreement to sell besides that which has been partly performed. Thus if the seller of goods agree as part of the original bargain to take them back if desired, this agreement to repurchase becomes enforcible by the acceptance and receipt or payment by the buyer. ”
There being evidence from which a jury would have been justified in finding that this transaction was one which had a definite and settled place in the sugar trade, and that it constituted an entire contract which had been partly performed by the delivery and payment for the original 10,000 bags of sugar, I believe the dismissal of the complaint was erroneous and that the judgment appealed from should be reversed, with costs, and a new trial granted.
Laughlin, J., concurred.
Judgment affirmed, with costs.
See 2 R. S. 136, § 3.— [Rep.