127 Misc. 508 | N.Y. Sup. Ct. | 1926
The plaintiff and the defendant each move for a direction of a verdict. They have stipulated that the motions may be decided with the same force and effect as if they had been disposed of on the trial. There are two causes of action. One for $80,000 damages for breach by the defendant of an alleged contract of employment and a second for commissions claimed to have been
(1) As to the first cause of action I am of the opinion that the plaintiff should prevail (A) unless the documentary evidence precludes acceptance of the paroi testimony of the plaintiff; (B) or unless after its acceptance it is futile because the law makes a contract founded thereon unenforcible; (C) or if, because the memoranda relied upon as incorporating the oral contract, is not a sufficient memorandum of the alleged contract, signed by the party to be charged therewith so as to be valid in law. Bach of these aspects will be taken up in its order and merely my conclusions thereon stated.
(A) The plaintiff and the defendant had contract relations beginning in November, 1914, whereby the plaintiff Was to represent the defendant in the United States and Canada “ for five years with rights of renewal ” on a commission basis of “ either 10 per cent, or 5 per cent, according to prices quoted.” On August 1, 1918, the plaintiff and defendant signed a paper in' Cuba which set out a new arrangement between the parties and obligated the defendant to pay the plaintiff a flat sum on a monthly basis. This paper of August 1, 1918, had a postscript, also signed by both parties, as follows: “ P. S. If we terminate this contract we will begin a new one on the basis of commission.” The contract referred to (the one to which this postscript was appended) did not fix any period in years during which it was to run. The plaintiff has adduced paroi evidence of a talk claimed to have been had contemporaneous with or just prior to the moment of signing of this August 1, 1918, paper. The defendant asserts that this paroi evidence is not admissible on any theory and plaintiff asserts that it is admissible on several theories. (1) That the paper of August 1, 1918, being silent as to its duration, paroi evidence is admissible to supply such a term. This is unsound. Parol evidence of such a term is only admissible where the period resting in paroi relates to the written contract it is claimed that the unwritten term is a part of. In this case the period of duration in the paroi evidence does not relate to the contract set out in the August 1, 1918, paper, but to an entirely different contract. It relates to a claimed revival,
(B) We will assume, however, that the paroi evidence of this claimed contemporaneous contract entered into between the parties as of August 1, 1918, and to have operation at the termination of the August 1, 1918, paper or agreement, is admissible. If it is an oral contract for a period of five years with the right of renewal, may it be enforced in this State? This oral contract was made in Cuba. What law governs this contract? The general rule is that the lex loci contractus prima facie determines the validity, obligation and legal effect of a contract. This rule yields to an
(C) It is claimed, however, that the oral contract claimed to be contemporaneous with the August 1, 1918, paper is embodied in writings in a manner that caused it to no longer rest in paroi, and, therefore, its claimed ultimate written form does not offend the Statute of Frauds of the forum. This claim has for its basis the correspondence between the parties, particularly the letter of November 16, 1922, in which the plaintiff wrote to the defendant claiming a present contract for an unexpired three and one-half years with a right of renewal for five years, and discussing a different basis for carrying on his relations with the defendant. Defendant answered this letter December 18, 1922, without specifically challenging the statement with regard to a contract having three and one-half years to run. It is claimed that the correspondence embodied in these two letters, considered in connection with the certain other letters cited, furnishes written evidence of the contract the plaintiff is suing upon. The cases require that a Witten agreement must show the entire contract. (Drake v. Seaman, 97 N. Y. 230; Poel v. Brunswick-Balke-Collender Co., 216 id. 310, 314; Wright v. Weeks, 25 id. 153, 157; Mandel v. Guardian Holding Co., 200 App. Div. 767, 769, 770; Dawson v. Margolies, 126 Misc. 39, 41.) Of course, this rule does not prevent an existing situation referred to in the witten agreement from being incorporated therein by reference and evidenced by paroi. (Marks v. Cowdin, 226 N. Y. 138.) But a previously existing situation which has ended and been followed by another situation cannot be treated as an existing situation. It is not enough that the written memoranda identify a contract. The written memoranda must be the contract. (Poel v. Brunswick-Balke-Collender Co., supra; Drake v. Seaman, supra; Wright v. Weeks, supra; Mandel v. Guardian Holding Co., supra; Dawson v. Margolies, supra.) The Written memoranda in this case, particularly the letter of November 16, 1922, with the reply thereto, is not the contract sued upon herein. It is at best a purported identification of a contract. Even though an inference were to arise from a failure to specifically deny that there was an admission that a contract existed, such inferential admission is not effective to constitute a written memorandum as required by statute to be signed by the party charged therewith, of the contract sued upon herein. The inference, or the Writing from which the inference is drawn, cannot nullify the statute, and neither the inference nor the witing from which it is drawn evidences the terms
I am constrained, therefore, to direct a verdict for the defendant on the first cause of action. As to the second cause of action, a verdict must be directed for the plaintiff. The only question is as to the amount. I accept the plaintiff’s theory and figures with respect to that cause of action and direct a verdict in the sum of $371.19, with interest of $59.36, being a total of $430.55. The plaintiff has an exception to the directing of a verdict for the defendant on the first cause of action and defendant has an exception to the direction of a verdict for the plaintiff on the second cause of action for $430.55. Enter judgment accordingly. Thirty days’ stay and sixty days to make a case.