Albert C. Field, Inc. v. Kieser — 77 Misc. 105

Majority

p. 105

Albert C. Field, Incorporated, Appellant, v. Fred Kieser and Fred Kieser, Jr., Copartners Doing Business Under the Firm Name and Style of F. Kieser & Son, Respondents.

(Supreme Court, Appellate Term, First Department,

June, 1912.)

Headnote

Statute of Frauds — sales of goods — contracts and transactions within the statute — evidence — pleading statute as a defense.

Where, in an action upon a contract made by correspondence, the uncontradicted proof shows a sale by plaintiff to defendant of 10,000 bushels of July oats as alleged in the complaint, an unanswered letter setting forth the terms of sale, mailed by plaintiff to defendant and by custom and usage of trade adopted as the contract, sufficiently establishes that said letter was by reference incorporated in a telegram subsequently sent by defendant and which read “ No delivery made on July oats contract ten thousand bushels consider same cancelled,” and took the case out of the Statute of Frauds.

Where one memorandum of a contract is imputed by reference into another, parol evidence of the identity of the memorandum referred to is admissible to show that the contract is not within the Statute of Frauds.

Appeal by the plaintiff from a judgment of the City Court of the city of Kew York rendered in favor of the defendants upon the merits after a trial before the court sitting without a jury.

p. 106

Francis L. Field (Henry Willis Smith, William T. Tomlinson and Raeburn W. Jenkins, of counsel), for appellant.

Charles A. Hitchcock, for respondents.

Plaintiff sues upon a contract made on or about the 7th day of Hay, 1907. On that day the plaintiff wrote and mailed to the defendants the following letter:

"May 1th, 1909.

“ F. Kieser & Son :

“ Dear Sirs.— I beg to confirm my sale to you to-day: 10 m. Bus. Standard wht. oats, at 58% cents per bushel. O. I. F. Haverstraw, Erie.

“ Shipment, July.

“To be billed.

“ Western official certificates of weight and grade final. Draft payable at sight with proper documents attached. Excluding date of sale, time of shipment dates from receipt of full shipping instructions and excludes Sundays and legal holidays. Terms in this contract final. If not correct, advise me at once.

“ In writing or wiring

“ please refer to

“Albert O. Field, Inc.,

“ by A. O. Field, Pres/*

It was shown at the trial that it is the usage in the grain trade to send a letter of similar form “ on the evening of the day when you had a transaction about the grain to the person you had a contract with. It is also the custom and usage of the trade that, if no advice is received from the party you have sent it to, the contract mailed is adopted as the written contract between the parties.” Ho answer was received to this letter, and the plaintiff shipped the grain at the end of July. On August second, the defendants telegraphed to plaintiff: “ Ho delivery made on July oats contract ten thousand bushels consider same cancelled.” The

p. 107

plaintiff claims that this telegram incorporates the terms of the letter written by them, and is a sufficient memorandum to take the case out of the Statute of Frauds. The telegram, while stating that defendants considered the contract on July oats cancelled by failure to deliver, admits, by fair construction, that a contract for ten thousand bushels of July oats was made. The letter of May 7, 1909, written by the plaintiff, concededly contains all the terms of a complete contract, and would be sufficient to take the case out of the Statute of Frauds as against the plaintiff. If, therefore, the letter can be incorporated in and read with the telegram, the defendants have signed a memorandum setting forth the complete terms of the agreement, even though, at the same time, they state that they regarded it as canceled.

In the case of Brauer v. Oceanic Steam Navigation Co., 178 N. Y. 334 , 339, it was said “ that a note or memorandum sufficient to take a contract out of the operation of the Statute of Frauds must state the whole contract with reasonable certainty so that the substance thereof may be made to appear from the record itself without regard to parol evidence.” This rule, however, does not mean that extrinsic evidence may not be given, for the purpose of identifying an object named in the memorandum (Waring v. Ayres, 40 N. Y. 357 ), and it is well established that, where one memorandum is imputed by reference or annexation into another one, evidence of the identity of the memorandum referred to may be supplied by parol. Abb. Tr. Ev. (2d ed.) 358-359. This parol evidence must, of course, be sufficient to identify this memorandum clearly, leaving no room for a fair dispute as to the contract referred to. In this case, I think the evidence is amply sufficient for the purpose. The uncontradicted proof shows that, on August second, the plaintiff had no other transaction with the defendants than the' sale of ten thousand bushels of July oats, as set forth in the complaint; that a letter setting forth the terms of the sale in writing was mailed to the defendants, and presumably received by them; that this letter was never answered; that it was denominated a “ contract,” and that,

p. 108

by custom and usage of trade, if unanswered, such a letter is adopted as the contract of the parties. It seems to me that, so long as this evidence is uncontradicted, it is established that the “ contract ” referred to was the letter of May seventh, and incorporated that letter by reference into the telegram. See Beckwith v. Talbot, 95 U. S. 289 ; Cave v. Hastings, 7 Q. B. Div. 125.

Judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Seabuby and Bijub, JJ., concur.

Judgment reversed.

Cases cited

Waring v. Ayres 40 N. Y. 357 N.Y. 1869-06-10 p. 107
Beckwith v. Talbot 95 U. S. 289 SCOTUS p. 108