144 N.Y.S. 725 | N.Y. App. Div. | 1913
This is an action to recover damages for the breach of an executory contract for the purchase by the defendant of about twelve tons of upriver fine Para rubber. The principal questions litigated on the trial and presented for review by the appeal are with respect to whether the plaintiffs established a contract valid within the Statute of Frauds, and authority of defendant’s agent to make the contract, and concerning the measure of damages.
The plaintiffs were copartners engaged in the business of importing and dealing in crude rubber; and the defendant was a domestic corporation engaged in the business of manufacturing and selling, among other things, billiard tables. The defendant had manufacturing plants at Long Island City, N. Y., and Chicago, 111., and Muskegon, Mich.; but the billiard tables were made only at the factory at Muskegon, and all of the rubber purchased by it was used at that place. Its principal office was in Chicago, but it had a branch office in the borough of Manhattan, New York. One Kelly represented the plaintiffs’ firm in selling rubber, and on its part conducted the negotiations with respect to purchasing the rubber in question. The defendant had in its employ in its purchasing department one Rogers, who had an office at the Long Island City factory, and represented the defendant in purchasing raw material. Rogers negotiated seven prior purchases of rubber by the defendant from the plaintiffs’ firm, through its said agent, the first of which was made on the 24th day of November, 1909, and the last on the 31st day of March, 1910. Kelly and Rogers had on the former occasions conducted their negotiations, in part at least, over the telephone.
On Saturday, the 2d of April, 1910, negotiations for the purchase of the rubber in question were opened by a conversation between Kelly and Rogers over the telephone. It does not appear which called up the other, but it would be a reasonable inference from the testimony of Kelly that he called Rogers, for he says he informed Rogers that he had a certain number of tons of rubber to sell and asked if he “could sell him any rubber,” and in answer to the inquiry Rogers inquired how the
“ Poel & Arnold,
“277 Broadway.
“New York, April 2, 1910.
“Brunswick-Balke-Collender Co.,
“Long Island City, L. I.:
“Gentlemen.—As per telephonic conversation with your Mr. Rogers today, this is to confirm having your offer of $2.42 per lb. for 12 tons Upriver Fine Para Rubber, for shipment either from Brazil or Liverpool, in equal monthly parts January to June, 1911, about which we will let you know upon receipt of our cable reply on Monday morning.
“ Thanking you for the offer, we remain,
“Very truly yours,
“POEL AND ARNOLD
“Per W. J. Kelly.”
“Enclosed, we beg to hand you contract for 12 tons Upriver Fine Para Rubber, as sold you today, with our thanks for the order.”
The original memorandum, designated “ Contract,” inclosed with the letter, was not produced on the trial, but the carbon copy, without signature, was received in evidence as Exhibit 3, and will be so referred to for brevity. It is as follows:
K-W
“ Brunswiok-Bauce-Collender Co.,
“Long Island City, L. I.
“Sold to You: P. A.
“For equal monthly shipments January to June, 1911, from Brazil and/or Liverpool, about twelve (12) tons Upriver Fine Para Eubber at Two Dollars and forty-two cents ($2.42) per pound; payable in U. S. Cold or its equivalent, cash twenty (20) days from date of delivery here.”
It was admitted that the letter and inclosure were received by the defendant. The letter was either opened by Eogers, or it and the inclosure were delivered to him, for after examining the inclosure, he filled in one of the defendant’s blank order forms, under date of April 6, 1910, and on that day mailed it to the plaintiffs. It was received in evidence as Exhibit 4
“About 12 tons Upriver Fine Para Bubber at 2.42 per lb. Equal monthly shipments January to June, 1911.”
Immediately under this blank space thus filled in by Bogers, and to the right,-was a printed subscription, as follows:
“ BespectfuBy yours,
“The Brunswick-Balke-Collender Co. of New York.
“ Per........................”
Under this subscription, opposite the word “Per,” Bogers wrote his name. To the left of this subscription, the following appeared in comparatively fine print, with the exception of the first fine which was in larger type than the rest, viz.:
“ Conditions on which above order is given.
“ Goods on this order must be delivered when specified. In case you cannot comply, advise us by return mail stating earliest date of delivery you can make, and await our further orders.
“ The acceptance of this order which in any event you must promptly acknowledge will be considered by us as a guarantee on your part of prompt delivery within the specified time.
“Terms............F. O. B.............”
The testimony of Bogers shows that, in filling in Exhibit 4, he followed the terms of the sale as specified in the original of Exhibit 3, and that the omissions, which were merely with
Rogers also testified that he returned to the plaintiffs with Exhibit 4 the original of Exhibit 3. This testimony was controverted by evidence given in behalf of the plaintiffs. Rogers assigned as a reason for returning it that it contained a clause relieving the plaintiffs from liability for delays in delivery in case of strikes “and some other memorandum of that kind.” Kelly testified that the form of contract which the plaintiffs’ firm usually sent to its customers with respect to the purchase of rubber, at and prior to that time, contained a note as follows:
“Note: This contract contingent upon strikes, accidents, or other causes beyond our control.” He, however, testified “we did not always put on our writings this strike clause,” and that it was not on the original of Exhibit 3, and that if it had been it would have been shown on the carbon copy, Exhibit 3. It is fairly to be inferred from Kelly’s testimony that if the strike clause was omitted from the original of Exhibit 3, the omission was by mistake, for he conceded that long prior to that time the plaintiffs’ firm had inaugurated the practice of inserting such a clause, and it appears by his testimony that the only reason he was able to say that it was not inserted in this instance is that it is not contained in the carbon copy. If the strike clause was on the original of Exhibit 3 that would render the testimony of Rogers, to the effect that he returned the paper, probable. It is not probable, however, that the original contained any typewriting not found in the carbon copy, and it would seem that if Rogers, by sending Exhibit 4, intended to reject the original of Exhibit 3, he would have notified the plaintiffs’ firm by letter or message to that effect. One of the plaintiffs, whose initial appears on the carbon copy, testified that, according to his usual custom, he compared Exhibit 3 and the original, and thereupon initialed the carbon copy, and that the original did not contain a strike clause. Three of the four individuals who, in the usual course of business, might have received Exhibit 4 for the plaintiffs’ firm, gave testimony tending to show that the original of Exhibit 3 was not returned. One of the plaintiffs, who might have received it,
The plaintiffs,, on receiving Exhibit 4, appear to have regarded it as a confirmation of the contract submitted by them. They filed it away after making a notation on Exhibit 3 of the defendant’s order number for the purpose of complying with its request to have said order number appear on the invoices and cases. There were, as already stated, parol negotiations between Rogers and Kelly with respect to the seven prior separate sales of rubber by the plaintiffs to the defendant; and in each instance the plaintiffs after such negotiations forwarded to the defendant contracts in the same form as the original of Exhibit 3, and without the so-called strike clause; and, with respect to five of them, Rogers upon receiving such contracts forwarded to the plaintiffs orders for the goods on the same printed blank form as that used in this instance, with the exception that one of such orders covered the purchases embraced in two of the contracts transmitted by the plaintiffs’ firm. The record does not show whether or not Rogers communicated with plaintiffs after receiving the contracts from them for the other two prior purchases. In each of the four memorandums, like Exhibit 4, which Rogers so sent to plaintiffs, he omitted the terms of credit, as he did in this instance. It was conceded that the rubber embraced in those contracts was delivered to the defendant pursuant to the terms of the contracts as thus made and paid for by it. There is no evidence on the question as to whether on said former occasions the plaintiffs sent any further communication to the defendant
Accepting, therefore, as we do, the findings of the trial court that the original of Exhibit 3 did not contain the strike clause, and that Rogers did not return it with Exhibit 4, and assuming that Rogers had authority to negotiate the contract for the defendant, it would seem that the minds of the parties had met on the terms of the contract contained in the original of Exhibit 3, and that the clause in fine print on Exhibit 4 to the left of the subscription was not intended to call for an acceptance, particularly in view of the former transactions between the parties, which distinguishes the case from Hough v. Brown (19 N. Y. 111), wherein it was held that a party who stated the terms of a contract, negotiated by parol, in a letter written to the other party, saying that he accepted them and requesting the party to whom the letter was addressed to accept his letter in writing, was not binding upon the writer of the letter in the absence of an acceptance thereof in writing. The inadvertent omission by Rogers from Exhibit 4 of the place from which the rubber was to be shipped at most would have given the plaintiffs’ firm a greater latitude with respect to the point from which shipment was to be made; and his inadvertent omission of the twenty days’ credit after delivery would at most have left the time of payment to be implied by law which would have been less favorable to defendant.
Although Exhibit 4 contains no reference to the original of Exhibit 3, it is perfectly clear from the evidence that the two papers relate to the same transaction and were intended to embody the same contract. It is not, however, necessary to decide whether the original of Exhibit 3 and Exhibit 4 taken together would constitute a sufficient note or memorandum of the contract signed by the defendant within the Statute of Frauds, for the record contains another item of evidence consisting of a letter written by the defendant to the plaintiffs’ firm on the 7th day of January, 1911, which supplies any omission. That letter is as follows:
“We beg herewith to advise you that within the past few
“ In order that you may not be put to any unnecessary inconvenience, we feel bound to give you notice at the earliest opportunity after investigating the facts, that we shall not recognize these transactions or any others that may have been entered into with Mr. Bogers which were without our knowledge or authority. ”
This letter was signed in the name of the defendant “Per Chas. P. Miller, Vice Prest.” If Bogers was authorized to represent the defendant, or plaintiffs were led to believe he was, the provisions of this letter by which it attempted to repudiate his authority, were, of course, ineffective. The defendant at that time, at least, was chargeable with knowledge of the correspondence and contracts which Bogers had theretofor had and negotiated for it, and of the correspondence he had had with respect to this transaction, and of the original of Exhibit 3 which he then held for it. The letter clearly recognizes that a transaction had been effected between Bogers and the plaintiffs for the purchase of twelve tons of rubber. The defendant merely disclaimed Bogers’ authority to effect it. The only transaction he had with the plaintiffs with respect to the purchase of such rubber during the month to which the letter relates, on the assumption that the original of Exhibit 3 did not contain the strike clause and that it embraced all the terms of the contract previously negotiated, as shown by the uncontroverted evidence, was the negotiation of the contract, embodied in the original of Exhibit 3. It is tobe borne in mind that the defendant held the contract signed by plaintiffs, and there is in such case no danger of opening the door to fraud or perjury by construing defendant’s letter as relating to the contract which is executed in a manner to bind plaintiffs. (See Newton v. Bronson, 13 N. Y. 587, 595.) We recognize that
On the question of Rogers’ authority to represent the defendant there is evidence in addition to that with respect to the former purchases of rubber of the plaintiffs by the defendant through him. Kelly testified that prior to such purchases he talked with one Troescher, the secretary and treasurer of the defendant, whose headquarters were at the New York office, and who alone signed the checks in payment of the rubber subsequently purchased, “about rubber;” that Troescher asked him from time to time concerning the state of the market, and said “That Mr. Rogers would do the buying of the rubber;” and that thereafter contracts were negotiated through Rogers. Mr. Arnold, one of the plaintiffs, testified that prior to any of the purchases he had several conversations with Troescher with respect to news concerning the rubber market, and that Troescher informed him “ that Mr. Rogers did the buying for the company.” The defendant gave evidence tending to show that Rogers did not have general
The remaining question relates to the measure of damages. The first shipment of a little more than two tons of rubber arrived at the port of New York on the 24th of January, 1911, and the defendant refused to accept it. It was then sold on January 26,1911, at the market price. The plaintiffs thereupon elected to regard the action of the defendant in writing the letter of January 7,1911, and in rejecting the tender of delivery, as a total breach of the contract, and on February 1,1911, they commenced this action. The repudiation of the contract in loto by the defendant gave rise to a cause of action in favor of the plaintiffs at once for their damages, which ordinarily, and, therefore, presumably, would be measured by the difference between the contract price and the market price at the time and place of delivery. (Windmuller v. Pope, 107 N.Y. 674, fully reported 12 N. Y. St. Repr. 292; Todd v. Gamble, 148 N. Y. 382; Saxe v. Penokee Lumber Co., 159 id. 371; Brown v. Muller, L. R. 7 Ex. Oas. 319.) That is the theory on which the plaintiffs have recovered. It is not questioned that the plaintiffs would have had a right to recover on that theory; but it is claimed that they waived such right and irrevocably made an election to hold the rubber as the property of the defendant, and thereby limited their right to recover to,another measure of damages. It is conceded that the first shipment was sold
It follows that the judgment' should be affirmed, with costs.
McLaughlin, Scott and Hotchkiss, JJ., concurred; Ingraham, P. J., concurred in result.
Judgment affirmed, with costs.