259 A.D. 534 | N.Y. App. Div. | 1940
The issue on this appeal is whether the written memorandum on which defendant relies to defeat plaintiff’s claim for the agreed price of merchandise sold and delivered to defendant is unenforcible under the Statute of Frauds
On April 11, 1939, plaintiff sold defendant 10,000 pounds of yarn for the agreed price of $13,286.32 on a credit to defendant expiring September 9, 1939, and concededly completed delivery by June 16, 1939. Payment not having been made when due, plaintiff instituted this action for the agreed price of the 10,000 pounds of yarn sold and delivered to defendant. All the allegations of the complaint were admitted by defendant except that defendant denied $13,286.32 was due; and by way of defense alleged the agreement was not to sell 10,000 pounds of yarn but 25,000 pounds, and counterclaimed for plaintiff’s alleged breach in refusing to deliver the additional 15,000 pounds. Plaintiff in its reply denied the existence of any contract for 25,000 pounds and pleaded the Statute of Frauds.
Defendant in his answer admits that the contract he relies on was reduced to writing and in his affidavit identifies the writing as a letter dated April 11, 1939, concededly sent by plaintiff to defendant, the relevant portion of which is as follows: “ We wish to confirm also, as per enclosure, sale to you of 10,000 pounds of our ‘ OS ’ yarn in 2/20’s at $1.30 dyed, but are not including on the contract, which this letter should cover, an additional 15,000 pounds to be used following the 10,000 pounds with the "understanding that price is to be determined between us, subject to market fluctuations, not to be less than $1.274 in the event of decline or more than $1.324 in the event of advance. This
Special Term denied plaintiff’s motion for summary judgment on the ground that there were issues to be tried, stating: “ Certainly the contract relied upon should not be disposed of without a trial.” We think the ruling was error as under the Statute of Frauds, which was properly pleaded, the memorandum in writing on which defendant relies to take the case out of the statute is unenforcible since material elements necessary to make the contract binding and complete are absent and resort must be had to parol evidence to supply the deficiency. (Bell Clothes Shops, Inc., v. Kamber, 204 App. Div. 1, 2.) A reading of the document relied on shows that the price of the additional 15,000 pounds, an essential element in a contract of sale (Ansorge v. Kane, 244 N. Y. 395,398; 1 Williston on Contracts, [Rev. ed.] § 37, p. 99), is not determined but left for future negotiation and agreement. The letter reads: “ * * * 15,000 pounds to be used following the 10,000 pounds with the understanding that price is to be determined between us, subject to market fluctuations, not to be less than $1.27| in the event of decline or more than $1.32j in the event of advance.” The document relied on expressly says the “ price is to be determined between us.” It does not, as defendant contends, give a fixed formula by which the price can be made certain without further future negotiations or agreement. It does not say the price is to be $1.27| if the market declines below $1.30 (the rate agreed on for the 10,000 pounds) and $1,321; if the market price advances above that rate. It says “ not to be less than ” $1,271; or “ more than ” $1,321;, thus necessarily leaving the price undetermined and undeterminable within a range of five cents per pound except by an agreement in the future. So far as the 15,000 additional pounds are concerned, the memorandum is but an agreement to agree and as such is not enforcible. (Sun Printing & Publishing Assn. v. Remington Paper & Power Co., 235 N. Y. 338, 345; St. Regis Paper Co. v. Hubbs & Hastings Paper Co., Id. 30,36.)
The memorandum is also indefinite as to when the price was to be determined, whether on June 16, 1939, immediately after the delivery of the 10,000 pounds, or on September 16, 1939, when defendant, without any basis in the memorandum, claims ship-
“ Price is a material element of any contract of sale and an agreement to agree thereon in the future is too indefinite to be enforcible.” (Ansorge v. Kane, 244 N. Y. 395, 398.) As was said by Cardozo, J., in Sun Printing & Publishing Assn. v. Remington Paper & Power Co. (235 N. Y. 338, at p. 344): “ Market prices in 1920 happened to rise. The importance of the time element becomes apparent when we ask ourselves what the seller’s position would be if they had happened to fall. * * * The parties attempted to guard against the contingency of failing to come together as to price. They did not guard against the contingency of failing to come together as to time. Very likely they thought the latter contingency so remote that it could safely be disregarded. In any event, whether through design or through inadvertence, they left the gap unfilled. The result was nothing more than ‘ an agreement to agree ’ (St. Regis Paper Co. v. Hubbs & Hastings Paper Co., 235 N. Y. 30, 36).”
We think, too, that defendant breached the contract on which he relies by failing to make payment for the 10,000 pounds of yarn when payment was concededly due. Defendant by his letter dated September 19, 1939, his verified answer and his bill of particulars fixed the date of plaintiff’s alleged anticipatory breach as September 16,1939. That was one week after the date (September 9, 1939) when payment was due for the 10,000 pounds of yarn concededly sold, delivered to and accepted by defendant but not paid for,
Martin, P. J., Untermyer, Cohn and Callahan, JJ., concur.
Order unanimously reversed, with twenty dollars costs and disbursements, and motion granted, and judgment directed in favor of plaintiff against defendant in the sum of $13,286.32, with interest from September 9, 1939, and costs. Settle order on notice.
Pers. Prop. Law, § 85.— [Rep.
