E. Richard Meinig Co. v. United States Fastener Co.

to the minimum number of gross to be ordered each month to answer its requirements, which he claims might have continued the contract indefinitely, a requirement that the goods should be called for in such quantities that all of them would be taken within a reasonable time regardless of plaintiff’s requirements, and, therefore, constituted a rejection thereof and a counter offer requiring acceptance in writing by plaintiff to make a binding contract (Pers. Prop. Law, § 31; Id. § 85, as added by Laws of 1911, chap. 571) which is the well-settled rule, if the premises are well founded. (See Mahar v. Compton, 18 App. Div. 536 ; Sidney Glass Works v. Barnes & Co., 86 Hun, 374 .) As I view the case, it is unnecessary to decide whether the order and acceptance constituted a valid contract in writing on the theory that the rule of law with respect to reasonable time of performance would be implied in plaintiff’s order (See Pope v. Terre Haute Car & Mfg. Co., 107 N. Y. 61 ; Spiritusfabriek Astra v. Sugar Products Co., 176 App. Div. 829 ; Eppens, Smith & Wiemann Co. v. Littlejohn, 27 id. 22; affd., 164 N. Y. 187 ; Pers. Prop. Law, § 124, subd. 2, as added by Laws of 1911, chap. 571), and that, therefore, the acceptance did not modify the order, or whether the provisions of section 85 of the Personal Property Law exclusively govern, or those of section 31 of the Personal Property Law, with respect to requiring a contract not to be performed within one year to be in writing, are also applicable. We have here other facts which I deem decisive of the appeal. The only contract made by defendant was by the acceptance, no part of which could be eliminated without its consent, and it gave no such consent. Both parties assumed that a valid contract, evidenced by the order and acceptance, had been made and when their contract, theretofore made, was fully performed in January, 1913, which evidently was about the time they anticipated it would be, for this contract was for glove clasps to be furnished after January 1, 1913, they proceeded to execute this contract and so continued without either party questioning its validity until the market price of the glove clasps was double the contract price, and then the defendant, by the letter of January 26, 1916, assumed, not to declare it void, but to declare it terminated on the theory, not supported by any evidence, that the plaintiff had not called for all the glove clasps within a reasonable time. Plainly, if there was a binding contract, as the defendant then recognized, it could not thus terminate it without affording the buyer an opportunity to take the balance of the goods. (Brede v. Rosedale Terrace Co., 216 N. Y. 249 .) The learned counsel for the appellant ingenuously contends that such recognition and part performance of the contract cannot avail the plaintiff, for the

reason that unless defendant’s acceptance is construed as an unconditional acceptance of the order, then there is no note or memorandum in writing of the contract signed by the party to be chaiged thereby or by his agent as required by section 85 of the Personal Property Law (as added by Laws of 1911, chap. 571), and it is not in writing, as is requ red where the contract is not to be performed within one year (Pers. Prop. Law, § 31), and, therefore, the contract in so far as it has not been performed is void; and that if the defendant’s acceptance should be construed as an unqualified acceptance, the contract would be void for indefiniteness and unenforcible because unilateral. But that is not the case as presented by this record and, therefore, we express no opinion with respect to those contentions. The plaintiff did not assume to reject the defendant’s acceptance, nor did it assume to construe it as an unconditional acceptance, or to call upon defendant for an agreement with respect to the construction thereof; and it is immaterial whether plaintiff deemed it an unconditional acceptance or a modification of its offer. The plaintiff deemed the acceptance satisfactory and acquiesced therein, and both parties understood that the order as accepted closed the contract. If the acceptance constituted a modification of the order, or a counter proposal, and defendant before receiving a written acceptance of the modification or counter proposal had withdrawn the same, and plaintiff had then attempted to hold defendant, we would have presented for decision the question as to whether it was sufficient that the writing was signed by the defendant and that plaintiff’s acquiescence could rest in parol and make a binding contract (See Marks v. Cowdin, 226 N. Y. 138 ; Grossman v. Schenker, 206 id. 466; Schlegel Mfg. Co. v. Cooper’s Glue Factory, 231 id. 459), but the controversy between the plaintiff and defendant did not arise at that juncture. The defendant did not withdraw its acceptance on the arrival of the period when the new contract was to become operative. The plaintiff on January 22, 1913, by letter signed by it, made a requisition for glove clasps to be delivered under this contract which was expressly identified by specifying its date. Since deliveries under the former like contract continued down to about that date, as evidently was anticipated, that appears to have been then deemed by defendant timely notice of plaintiff’s acquiescence in the condition of its acceptance for it made only a formal acknowledgment of the receipt of the order which it filled. Shortly thereafter the defendant by its letter of February 26, 1913, likewise expressly recognized the contract and without questioning its validity or binding effect proceeded to make deliveries

thereunder and during a period of more than three years delivered and received pay for nearly one-half the quantity covered by the contract. It is argued in behalf of the appellant that the reference to the contract in plaintiff’s first order was merely intended as a specification of part of the goods to be taken under the contract and was a recognition thereof -only pro tanto. The authorities cited from our own jurisdiction in support of that contention relate to contracts which were deemed void and unenforcible for indefiniteness or lack of mutuality or as unaccepted offers or options (Chicago & G. E. R. Co. v. Dane, 43 N. Y. 240 ; Sidney Glass Works v. Barnes & Co., 86 Hun, 374 ; Rafolovitz v. American Tobacco Co., 73 id. 87; Auto Spring Repairer Co. v. Mutual Auto Accessories Co., 72 Misc. Rep. 402 ), and of course, in such case, a specification as to part of that which was void for indefiniteness would not validate the indefinite provisions as to the unexecuted part of the contract. I think the plaintiff’s letter should not receive such a narrow construction, and that, if written and signed acquiescence by plaintiff in defendant’s acceptance - of the order were required to validate the contract as against the plea of the statutes, the plaintiff’s letter, expressly recognizing the contract as it then existed, consisting of the order and the acceptance, should be deemed sufficient, and that the plaintiff, if not bound before within the statutes, thereby became obligated not only to take that part of the goods particularly specified in the letter but all of the glove clasps covered by the contract. The plaintiff having written that letter could not be heard to say it only meant to acquiesce in defendant’s acceptance to the extent of the goods thereby ordered, for it thus plainly recognized by its signed letter that the order and acceptance constituted a contract then existing between the parties and in part performance of which defendant was requested to deliver goods; and, therefore, if plaintiff’s acquiescence in the acceptance was necessary to render the contract valid and enforcible under the statutes, its letter should be construed as constituting such acquiescence notwithstanding the fact that it is not so phrased as to indicate that the plaintiff understood that a formal acceptance in writing of the conditional acceptance by defendant was necessary. Any other construction would be tantamount to holding that without negotiating a new contract, both parties, in effect, impliedly agreed that, although the contract was not binding upon either of them, they would proceed thereunder so long as it was mutually satisfactory to them to do so but no longer. It is perfectly plain that neither party so understood or intended; and, moreover, that theory is wholly inconsistent with the plaintiff’s letter, which plainly recognized and intended that the contract was valid in

its entirety. It should require no extended argument to show that a contract by a manufacturer to take a specified quantity of definitely described goods at a stated price in monthly installments as required by his business, but in any event the entire quantity to be taken within a reasonable time — especially when, as here, the buyer had been receiving like goods from the seller under a similar contract under which it had received from the seller all like goods used by it for a period of three years and the parties had maintained business relations for five years before that — is neither void for indefiniteness nor unenforcible as being unilateral. (See Edison Electric Ill. Co. v. Thacher, 229 N. Y. 172 ; Secor v. Ardsley Ice Co., 133 App. Div. 136 ; affd., 201 N. Y. 603 . See, also, Schlegel Mfg. Co. v. Cooper's Glue Factory, supra.) There is no merit in a further contention made by appellant to the effect that, since the plaintiff alleges, although the allegation was denied and not proven and, therefore, is of no importance, that it was understood that what would constitute a reasonable time was to be determined from the prior dealings between the parties, therefore the contract is void because the entire agreement is not in writing. The authorities relied on by the appellant in support of that contention are not in point, for here the material provisions of the agreement, even if it was agreed as so alleged, are in writing for there is no inconsistency between the rule of law applicable to the writing and the alleged parol agreement (See Poel v. Brunswick-Balke-Collender Co., 216 N. Y. 310 ; Mentz v. Newwitter, 122 id. 491), because in the circumstances, the prior dealings between the parties would be a controlling factor in determining what would be a reasonable time.

It follows that the judgment and order should be affirmed, with costs.

Clarke, P. J., Smith, Merrell and Greenbaum, JJ., concur.

Judgment and order affirmed, with costs.