Goldowitz v. Henry Kupfer & Co.

| N.Y. App. Term. | May 15, 1913

Guy, J.

This is an action to recover damages for the nondelivery of goods alleged to have been sold by defendant to plaintiffs.

The defence relied upon at the trial was the Statute of Frauds, viz., that no valid sale was shown.

An order on a blank printed by defendant, with its name and address at the top, for the sale of the goods in question to the plaintiffs, giving the terms of sale, time of delivery, and price of each item of goods, wTas signed by one of the plaintiffs; At the foot of the order was a printed guaranty of the price, coupled with the privilege of canceling the order signed, in print, with the name of defendant. An unsigned letter to plaintiffs’ firm, with defendant’s name and address on the letter head, acknowledging the entry of plaintiffs’ order, was delivered to one of the plaintiffs. The defendant’s president testified that the plaintiffs’ order was placed upon its books as an order; but that its counsel later advised it that it was invalid.

A printed signature will answer the requirements of the Statute of Frauds, and where a trader who is in the habit of delivering printed bills of parcels, to which his name is prefixed, delivers one containing the necessary particulars of the contract, it is sufficient. Browne Stat. Frauds, (5th ed.) 356.

It also appears that the contract for the sale of articles thereafter to be manufactured and delivered, and which are not suitable for sale to others in the ordinary course of the seller’s business, does not come within the Statute of Frauds. Warren Chemical & Mfg. Co. v. Holbrook, 118 N.Y. 586" court="NY" date_filed="1890-02-25" href="https://app.midpage.ai/document/warren-chemical--manufacturing-co-v-holbrook-3623255?utm_source=webapp" opinion_id="3623255">118 N. Y. 586, 593; Meyer Bros. Drug Co. v. McKinney, 137 A.D. 541" court="N.Y. App. Div." date_filed="1910-03-09" href="https://app.midpage.ai/document/meyer-bros-drug-co-v-mckinney-7341150?utm_source=webapp" opinion_id="7341150">137 App. Div. 541, 545; affd., 203 N.Y. 533" court="NY" date_filed="1911-10-03" href="https://app.midpage.ai/document/meyer-brothers-drug-company-v--mckinney-3622699?utm_source=webapp" opinion_id="3622699">203 N. Y. 533; Laws of 1911, chap. 571, § 85, subd. 2.

The judgment must be reversed and a new trial ordered, with costs to appellants to abide the event.

G-erard and Page, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.