Waxelbaum v. Schloss — 131 A.D. 826

Majority

p. 826

Joseph Waxelbaum, Respondent, v. Nathan Schloss and Others, Appellants.

First Department,

April 8, 1909.

Headnote

Sale — Statute of Frauds — contract to sell goods over fifty dollars in value — evidence.

Where under a contract for a sale of goods for more than fifty dollars there has been neither a partial delivery nor payment of any portion of the purchase price, the contract is void under the Statute of Frauds.

An agreement required by the Statute of Frauds to be in writing may be embodied in different papers having relation to each .other and signed by the party sought to be charged, but the whole contract must be within the writings. A letter from the seller requesting the bu3rer to call in reference to the

p. 827

goods selected by him, taken in connection with an unsigned order for the goods, is insufficient to make a binding contract to sell.

A printed notice upon the face of the order, which was on a blank form, that it was subject to acceptance at the home office of the defendant could not be ignored by the plaintiff, and upon defendant’s refusal to sanction the sale there was an end to the proposed purchase.

Appeal by the defendants, Nathan Schloss and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of March, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of March, 1908, denying the defendants’ motion for a new trial made upon the minutes.

Daniel W. Blumenthal, for the appellants.

S. Marshall Kronheimer, for the respondent.

The action is for damages for failing to deliver goods alleged to have been purchased by the plaintiff’s assignor from the defendants.

A firm of jobbers known as the Waxelbaum Company, through its representative, selected from defendants’ stock of goods at their salesrooms in New York city some 800 suits of clothing and verbally agreed to purchase them at prices aggregating about §3,300. The defendants made a list of the goods by lot numbers and quantities on a blank form used by them. This blank form was headed “Schloss Bros. & Co. of Baltimore and New York,” and in substance was as follows: “Waxelbaum Co. of Macon, Ga., request that you make and consign” to them “the garments enumerated below ” which “ they agree to pay for in Baltimore in current funds; ” then follows a list of the suits and sizes with a statement that the price of each suit is §5. Across the face of this paper appeared the words “ All orders given to representatives or members of firm are subject to acceptance by the Executive Dept, at Baltimore,” at which place defendants’ factory was located. This paper was not signed by sellers, these defendants, but a duplicate of it was delivered to the proposed purchaser. The order was submitted to the executive department of the defendants at Baltimore and their New York representative was instructed not to fill the order unless the “ Schloss Brothers & Company ” labels were

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removed from the garments. The Waxelbaum Company refused to accede to this condition and demanded delivery of the goods with the label on, and on refusal assigned their claim for damages to the plaintiff, who brought action thereon.

The defendants by their answer plead the Statute of Frauds as well as denied that any bargain of sale was made, pleading that the order was conditional upon acceptance by the Baltimore office, which had not been given.

The price of the goods claimed to have been purchased was more than fifty dollars and there was no part delivery nor was any portion of the purchase price paid.

Even if the contract of sale was absolute and not conditional upon acceptance by the Baltimore office, it was void under the Statute of Frauds, now embodied in section 21 of the Personal Property Law (Laws of 1897, chap. 417) because it was not subscribed by the defendants. The plaintiff claims that the following letter written and signed by the defendants a day or two after the delivery of a copy of the unsigned order satisfies the statute and constitutes a sufficient signing. The letter is as follows:

“ Mess. Waxelbaum & Co.:

City.

“Gentlemen.— Please call at our Flew York office on receipt of this letter in reference to the goods you selected.

Eesp’y,

“ (Signed) SCHLOSS BEOS. & CO.,

“P. S. E.”

The agreement required by the Statute of Frauds may be embodied in different papers having relation to each other, signed by the party to be charged (Peck v. Vandemark, 99 N. Y. 29 ); but the whole contract must be collected from the writings. (Wilson v. Lewis-ton Mill Co., 150 N. Y. 314 .) The signed letter taken in connection with the unsigned order falls very far short of making a complete agreement to sell. The unsigned order is not even an account of goods sold. It is simply a statement that the Waxelbaum Company request consignment to them of the enumerated goods at the specified price. There is nothing in the signed letter tending to show * that the defendants confirmed the sale or the order, or that they

p. 829

acceded to tlie request to consign or that they bound themselves to ship or deliver. The letter is simply a request to call in reference to the goods which had been talked about, the kinds and quantity of which a memorandum had been made. In no sense was the letter effectual to give the order the effect of an absolute agreement to sell the goods enumerated. In Coe v. Tough ( 116 N. Y. 273 ) the signed letter accompanied the unsigned list of property described as having been bought, and it was held that the requirements of the statute were not complied with. Besides, the plaintiff’s assignor was given notice upon the face of the order by printing in different ink that it was subject to acceptance by the home office of the defendants at Baltimore. This was a part of whatever contract there was and could not be ignored. The executive department of defendant refused to sanction the sale and that was the end of the proposed purchase.

The learned trial court was in error in refusing to grant the motion to dismiss the complaint.

The judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.

Patteeson, P. J., McLaughlin, Laughlin and Claeke, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.

Cases cited

Peck v. Vandemark 99 N. Y. 29 N.Y. 1885-04-14 p. 828
Wilson v. Lewiston Mill Co. 150 N. Y. 314 N.Y. 1896-10-13 p. 828
Coe v. Tough 116 N. Y. 273 N.Y. 1889-10-08 p. 829