147 N.Y.S. 655 | N.Y. App. Div. | 1914
The serious question involved upon this appeal is whether the communications by letter and telegram which passed between the parties hereto following the making of a verbal contract for the sale and delivery by respondent to appellant of personal property exceeding fifty dollars in value were sufficient to render the contract valid under the Statute of Frauds. The answer admitted the cause of action set forth in the complaint, but pleaded as a counterclaim damages to the amount of one thousand six hundred and seventy-two dollars and fifty cents by reason of the failure of the respondent to deliver to the appellant twenty-five tons of copper wire, and
“ Mr. W. M. Spiegel, Mar. 21, 1912.
“Elmira, N. Y.
“Dear Sir: Confirming long distance telephone conversation which the writer had with Mr. Spiegel, Jr., we herewith beg to confirm purchase from you of 25 tons clean heavy copper wire at 13% c. per lb.,—also one carload containing the usual
Also immediately following said conversation, respondent’s son, who, as is indicated by the following letter, had told the respondent by telephone of such conversation, telegraphed the appellant:
“ Cancel order for turnings and copper wire as same has been disposed of by my father.
“M. F. SPIEGEL.”
to which appellant immediately replied by telegram : “ Cannot comply with your request. Have written.” In the letter of that day, written to the son, appellant stated that he would consent to the cancellation of the purchase of the carload of brass and bronze' turnings, but would not consent to cancel the purchase of the copper wire. On the same day, March twenty-first, respondent wrote appellant:
“When I arrived home at 6.50 p. M., my boy who is about eighteen years old told me that you called him up by telephone and he made you a price on brass turnings and copper wire. Now you know how youngsters are, they do not consider things when they speak. He knew well when he spoke to you that I had not purchased the turnings, but went down to see about getting them, but did not get them. Somebody else got them this time. After my boy spoke to you he called me up by telephone and told me about it and I told him to telegraph you at once to cancel this order and explanation would follow. I assure you if I had got the turnings you would get them, no matter how cheap he had sold them to you, but I did not get them, therefore I cannot send you what I have not got.”
On March twenty-second respondent wrote appellant: “I received your letter and note what you state regarding the copper and also the brass turnings. I have written you
“I was called out of the city yesterday the 21st, and did not leave any authority to any one to sell anything or give any prices to any one for any stock. I never thought or dreamt that a youngster would think of any such a thing as to stand at the telephone and make prices and sell goods which I have not got.
“ When I asked my son about it and gave him a calling down he said he was just having fun, but I do not feel that way. I will ask you the next time if you want to speak to me do not speak to any one else. I also gave the telephone operator a calling down for allowing my boy to speak instead of myself. They have had such orders before but she stated to me that she told you I was out of the city and you said any one will do.
“You know how youngsters of eighteen are. They think they know everything but they don’t know nothing, therefore I will ask that you will have no hard feelings on this account.
“ I expect a large lot of copper in, but have not got it yet, and when I get it I will let you know.
“I have no fault to find with you, I am pleased with our dealings and am sorry that this happened.”
To this letter appellant replied March twenty-third, insisting upon having the copper wire and saying: “We note your statement that you expect to receive a large lot of copper, and we see no reason why this contract cannot be filled with that large lot.”
On March twenty-eighth appellant wrote respondent: “As regards your request for check, beg to state that we cannot do anything further relative to your account, -until we know your definite decision in regard to filling your contract obligations which you have with us.”
To this letter respondent replied March twenty-ninth:. “Your letter of March 28th to hand and note what you
‘ ‘ All orders which you had with me were filled. I have written you a letter and explained in regards to some transaction which you had with a boy of eighteen, Milton F. Spiegel. The telegram was signed by Milton F. Spiegel and he done business with you which I did not know anything about.
“If you have any claim collect it from M. F. Spiegel. You cannot find any acknowledgment or acceptance from me.”
Following the refusal of appellant to pay respondent’s claim, without allowance being made by respondent on account of the purchase of the copper wire,, this action was brought.
As to the authority of respondent’s son to make the sale we think the evidence was sufficient to warrant the submission of that question to the jury, and hence we must assume that the jury would have so found, as in reviewing a judgment entered upon the dismissal of a counterclaim, as in reviewing a judgment entered upon a nonsuit, the appellant is entitled to the benefit of every fact which the jury could have found from the evidence, and to all inferences warranted thereby. The respondent is, therefore, upon this appeal to be held chargeable with the acts of his son in connection with the alleged sale. As to the merits of the defense of the Statute of Frauds, it was not the intention of the statute to require that the memorandum should of itself constitute a contract, as it was required to be signed only by the party to be charged. Had such been the intention the statute would have declared that all such contracts should be void unless in writing. The purpose of the memorandum is to serve as an acknowledgment or admission in writing of the person to be charged that such a contract has been made. The statute does not brand the verbal contract as illegal but simply says the verbal contract shall not be enforcible by action unless there be some note or memorandum thereof" in writing signed by the party to be charged. It matters not how informal or bunglingly constructed the memorandum may be. Anything under the hand of the party sought to be charged admitting that he had entered into the agreement will be sufficient to satisfy the statute, which was only intended to protect parties from having parol
A contract for printing and binding in which the rates are expressed as “current rates,” does not create-the contract an invalid one under the Statute of Frauds, although the rates must be established by parol proof. (Argus Co. v. Mayor, etc. of Albany, 55 N. Y. 495.)
An agreement to furnish glass at “ present prices,” and in the event of any reduction in glass prices by the trade generally to modify prices accordingly, satisfies the statute. (Flash v. Rossiter, 116 App. Div. 880.)
Contracts required by the Statute of Frauds are subject to the ordinary rules of construction. (Seymour v. Warren, 179 N. Y. 1.)
In considering the merits of the question involved upon the appeal it is proper to assume. as bearing upon the construc
The letter and telegram of respondent of March twenty-first acknowledge that a price was made on the turnings and copper wire, that the offer was,accepted, and that the transaction was recognized by both parties as a sale or accepted order, but the writings, being silent as to the subject-matter and terms of the contract, were insufficient to constitute a note or memorandum adequate to relieve the transaction from the operation of the Statute of Frauds. However, when on the following day in answer to appellant’s letters of the twenty-first stating the particulars of the verbal contract, respondent wrote appellant the letter of March twenty-second, in no way denying the making of the contract or disputing the terms thereof, as fully stated in appellant’s letter, and placing his claim to exemption from liability upon the contract, not upon the ground that no sale had been made, but solely upon the ground of lack of authority in his son to make the sale, and expressly acknowl- . edging that his son had made prices and sold goods, and referring to respondent’s letter of the twenty-first saying, “I have
A case in many respects singularly like the case at bar is that of Poel v. Brunswick-Balke-Collender Co. (159 App. Div. 365) in which following a parol contract entered into between the agents of the respective parties, the plaintiffs prepared, signed and mailed to the defendant, in April, 1910, a memorandum, designated contract, stating the quantity of rubber sold by plaintiffs to defendant, the date and place of shipment and the price and method of payment. Upon the receipt of this contract the defendant filled out and signed one of its order blanks stating quantity of rubber purchased, and price and time of shipment, and sent it to the plaintiffs, which plaintiffs claim they returned for the reason that it contained a strike clause. Thereafter defendant on January 7, 1911, wrote a letter to plaintiffs stating that there had come to defendant’s attention information as to certain transactions had by its agents with plaintiffs, “ and especially as to a transaction in April last relating to 12 tons of crude rubber.” The letter then states that the agent had no authority to effect the transaction, and that the defendant should not recognize it. The court held, entirely disregarding the order blank sent by defendant to plaintiffs, that this letter written for the purpose of disclaiffiing liability, taken in connection with the contract received from plaintiffs, clearly recognized that a transaction had been effected between defendant’s agent and plaintiffs for the purchase of articles originally contracted for by parol and constituted a sufficient memorandum signed by the defendant under the Statute of Frauds. The court in that connection says: “ But we do not deem it an extension of that doctrine to hold that on these facts the. defendant admitted by its letter of January 7,1911, that the contract evidenced by the original of Exhibit 3, which it was competent to identify by parol evidence as has been done, had been negotiated between the defendant’s agent Rogers and the plaintiffs, and, on that theory, notwithstanding the fact that the letter was written for the
We think the trial court was in error in holding as matter of law that under the evidence the contract was invalid under the Statute of Frauds, and in dismissing the counterclaim. The judgment appealed from should, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.
All concurred, except Kellogg, J., dissenting.
Judgment reversed and new trial granted, with costs to appellant to abide event.