Evans v. Pelta

131 N.Y.S. 411 | N.Y. App. Div. | 1911

Miller, J.:

The question involved in this case is whether the defendants’ letters were sufficient to take the contract of sale out of the operation of the Statute of Frauds. It appears that on the 7th of December, 1907, the defendants at Colorado Springs, Col., gave the plaintiffs’ agent an order for merchandise of the value of $366.45. While a memorandum of the order was made by the agent and transmitted to the plaintiffs, it was not signed by the defendants. On March 4, 1908, the defendants wrote the plaintiffs, acknowledging 'that they “placed an. order for a few skirts Dec. 7th ” and requesting the plaintiffs to delay shipping. On the 1st' of April, 1908, the defendants again wrote the plaintiffs, stating: “We will let you know when to ship goods bought. ” On the 6th of May, 1908, the plaintiffs shipped the goods and mailed an invoice. On the 19th of May, 1908, the defendants wrote the plaintiffs, acknowledging the receipt of a letter of May thirteenth, which does not appear in the record, and saying: “In reply will state our reasons for not receiving the package, when we' countermanded the order placed with you, we .can assure you it Was not from choice.”

It is impossible to tell from the letters' relied upon, or from anything to which they refer, what the terms of the sale were. At most, the letters contain an admission that the defendants had ordered certain goods without disclosing the kind, quantity or purchase price. .The letters contain no reference either to the memorandum made by the salesman at the time of receiving the order or to the invoice mailed by the plaintiffs on May sixth. While it is quite .true that the evidence necessary to satisfy the statute need not all-be comprised in a single writing, it still is equally true that verbal evidence cannot be resorted to in order to supply any of the essential terms of the contract which the writing or writings relied upon omit. (Wilson v. Lewiston Mill Co., 150 N. Y. 314; Brauer v. Oceanic Steam Navigation Co., 178 id. 339.) Without the testimony of the salesman who took the order it would be absolutely impossible to tell a single element of the terms of sale. At most, we have a memorandum signed by the defendants, admitting that they had given some sort of an order; but that is not sufficient to satisfy the requirements of the statute.

The order of the Appellate Term and the judgment of the City Court should be reversed and a new trial granted, -With cost to appellants to abide the event. '

Ingraham, P. J., McLaughlin, Láughlin and Clarice, JJ„, concurred.

Determination and judgment reversed and new trial ordered, costs to appellants to abide event.