| N.Y. App. Div. | Jun 29, 1922
This appeal is from a judgment in favor of plaintiffs in an action to recover damages for the defendant’s alleged breach of a contract for the purchase of 900 pieces of fancy striped voile. Tender of performance is alleged on January 21, 1921, and a refusal by defendant to accept delivery. It is also alleged that since January 21, 1921, plaintiffs have been unable to find any market for the said merchandise within the city of New York, and in order to resell, traveling by plaintiffs’ agents was necessitated. The answer is a general denial and four separate defenses: (1) The Statute of Frauds; (2) an alleged modification of the agreement and defendant’s willingness to comply with it as modified; (3) that the alleged agreement was made subject to a custom or usage in the trade to the effect that all contracts were subject to responsible competition, that is, that if similar goods should be sold by responsible competitors for prices less than those stipulated, the purchaser should have the benefit of the reduced prices, which should be substituted in place of the prices stipulated in the contract; (4) that the defense or counterclaim of the aforementioned custom was omitted from the writings of the parties by mutual mistake, or by plaintiffs’ fraud. The reply is a general denial..
The appellant’s first point is based upon the assumption that two exhibits introduced in evidence by plaintiffs (Plaintiffs’ Exhibits 2 and 3) constitute the contract, but as the learned counsel for respondents has pointed out, the plaintiffs’ cause of action is not that the contract in question was in writing, but that it was an oral contract, of which Exhibits 2 and 3 were merely a note or memorandum intended to satisfy the requirements of the Statute of Frauds, and we think this contention is sustained by the record. Where a statute requires the contract to be in writing, the writing is constitutive; where it requires but a note or memorandum, it is merely evidential. (Turner Co. v. Robinson, 55 Misc. 280" court="N.Y. App. Term." date_filed="1907-06-15" href="https://app.midpage.ai/document/j-spencer-turner-co-v-robinson-5410906?utm_source=webapp" opinion_id="5410906">55 Misc. Rep. 280, 286.)
Mr. Fessenden, one of the plaintiffs, testified to the terms of an oral contract, and the written order prepared later by Wohl corresponds to the terms of the contract. Speaking of the oral agreement, Mr. Wohl, who represented defendant, testified: “ We closed the deal.” He said the written order was prepared upon one of defendant’s order blanks and contained the correct quantities of the goods, the style numbers and prices. The oral contract to which Fessenden testified was not disputed by defendant, except that it claimed that plaintiffs agreed to “ guarantee the prices,” which was denied. Plaintiffs’ Exhibit 2 alone was a sufficient memorandum to satisfy the statute, and the question as to whether or not Exhibit 3 constituted either an acceptance or a rejection of defendant’s offer was immaterial, because the evidence shows that the contract itself was oral, while the exhibits, as I have said, were merely intended as memoranda, Tire learned cqpnsel for the
No error is presented by the charge of the learned trial court that “ the interchange of the written order and the so-called paper of confirmation — that is, the order given by the defendants to the plaintiffs, and the paper partly written and partly printed that the plaintiffs sent in reply to that order to the defendants, and the subsequent correspondence between them and the delivery by the plaintiffs to the defendants of the samples of cloth that are referred to and included in the contract, constitute a valid and enforcible contract between these parties,” because these exhibits, the subsequent correspondence and the delivery of the samples had satisfied the statute. The effect of this charge was that the exhibits referred to were a sufficient memorandum of the oral agreement to satisfy the Statute of Frauds. The court said: “ Well, I charged there was a contract. I hold that as a matter of law, and you have your exception and that covers it.”
In reference to the defendant’s third point, the proper measure of damages was charged. The trial court eiqpressly charged that the prices which plaintiffs realized on resale were not necessarily the market price but were some evidence of market value. The question as to whether or not plaintiffs had exercised reasonable care in making the resale (Pers. Prop. Law, § 141, subd. 5, as added by Laws of 1911, chap. 571) was properly presented to the jury. There was no error in refusing to charge that “ the plaintiffs were bound to dispose of the goods in good faith, even to the defendant, rather than to sell them for a price less than the defendant offered.” Plaintiffs were not bound to sell the goods to defendant and were clearly entitled to rely upon the contract and defendant’s refusal to accept delivery.
In reference to the defense that plaintiffs had agreed to guarantee the prices, defendant’s Mr. Wohl testified that the market price of the goods was thirty-seven and one-half per cent' cheaper than at the time of the order and defendant was at all times willing to take the goods at the reduced price. He also testified that other
It follows that the judgment and order should be affirmed, with costs.
Present — Blackmar, P. J., Rich, Kelly, Jay cox and Young, JJ.
Judgment and order unanimously affirmed, with costs.