97 N.Y. 230 | NY | 1884
The court below has defeated the plaintiff upon the ground that his cause of action rested upon a contract which, by its terms, was not to be performed within one year, and which was rendered void by the statute of frauds for the want of a sufficient note or memorandum. That determination is challenged upon this appeal; and it is contended on behalf of the appellant that the memorandum was sufficient, for the double reason, that no integral or material part of the agreement was omitted, but if it was, the omission was only of the consideration, which, under the statute, no longer needs to be expressed. It will be convenient to consider the last proposition first, since if it is sound it determines this appeal.
Before the Revised Statutes went into effect the consideration of an agreement within the statute of frauds was required to be stated in the memorandum. In the early case of Wain *233
v. Walters (5 East, 10), this was put upon the ground of a distinction between the word "agreement" and the word "promise" as used in the statute; but later, upon the proposition that the memorandum should contain within itself all the elements of a complete cause of action without need of resort to parol evidence. (Saunders v. Wakefield, 4 Barn. Ald. 595.) Thereafter the courts in this State admitted and enforced that rule, (Sears v. Brink, 3 Johns. 210; Kerr v. Shaw,
13 id. 236), but held the memorandum sufficient if its language so indicated the consideration that it could be argued out or inferred, and very much of nice criticism and narrow distinction followed as a result. (Rogers v. Kneeland, 10 Wend. 251; 13 id. 114.) The Revised Statutes sought to remedy the difficulty by an amendment requiring the consideration to be expressed, but the question whether in each case it was expressed, or what was a sufficient expression, led to renewed and continual litigation. It was soon held that the words "for value received" were enough to satisfy the requirement (Miller v. Cook,
But in all the current of authority in this State, previous to that final amendment, it was steadily ruled that the memorandum must contain the whole agreement, and all its material terms and conditions, not indeed in detail and with absolute precision, but substantially, and so that one reading the memorandum could understand from that what the agreement really was. In Wright
v. Weeks (
Down to the amendment of 1863 no case wandered from that rule, so far as we have been able to discover; and since that date it has been re-stated and enforced in this court. In Newberry v.Wall (
And that brings us to the question whether the memorandum on its face stated the actual contract which the defendants made; or whether from the memorandum we can determine what the real contract between the parties was. The actual agreement was that the defendants would pay yearly the sums specified in the memorandum for the services of the plaintiff as a salesman, to be rendered for three years, and the inquiry is whether that contract is stated in the memorandum. The writing begins with the words "preserve this," and continues thus: "The understanding with Mr. Drake is as follows: 2,000 dollars for the first year; 2,500 dollars for the second year sure, and provided the increase sales shall warrant it, he is to have $3,000. 3 year in proportion to business as above." On the face of this writing the contract of the defendants with its essential terms and conditions does not at all appear, unless we yield to the construction very ingeniously suggested and forcibly argued on behalf of the appellant, that the words "for the first year" mean, for the first year's time of the plaintiff, and so on through the other stipulations. It is said the word "year" means a period of time, and must be held to refer to the plaintiff's time, using that word in the sense of services, and the construction is sought to be strengthened by parol evidence, showing that plaintiff was a salesman, and defendants manufacturers. There are no technical or ambiguous words in the memorandum requiring explanation, and we cannot resort to parol evidence to insert in the writing what is not there. (Wright v.Weeks, supra.) Confining our attention to what the memorandum says, we observe that its language is equally applicable to many contracts *237
entirely different from that actually made. Although plaintiff is a salesman, he may have invented or purchased a patent valuable for the use of the defendants, and bargained to give them that use for three years, in return for which plaintiff was to have $2,000 for the first year, $2,500 for the second year, sure, and provided the increase sales shall warrant it he is to have $3,000. Third year in proportion to business as above. Or the plaintiff may have rented to the defendants a store or factory for three years, and the memorandum recite the rental. And so the illustrations might be multiplied. Nothing in the writing indicates which of all the possible contracts was intended, or identifies the one really made. To a person depending wholly upon the writing, the real contract made is impossible to be ascertained. And here comes in the difficulty against which the statute was aimed. If the memorandum be held sufficient, any falsehood or perjury on the part of the plaintiff might apply it to an agreement never made or thought of, and against that the memorandum would not furnish the least protection. And there is a further difficulty as to the third year, which is the only one here in controversy. Precisely what the final clause means it is not easy to say. It does not provide in terms for any fixed salary, but makes the payment dependent upon the business in proportion to the rates above stated. No evidence was given showing the amount of business. We cannot hold this memorandum sufficient without a dependence upon parol evidence which would practically nullify the statute, and since we have held that one party may be bound by his signature while the other party, not signing, is not bound at all (Mason v. Decker,
The order of the General Term should be affirmed and judgment absolute rendered for the defendants, with costs.
All concur.
Order affirmed, and judgment accordingly. *238