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Goldowitz v. Henry Kupfer & Co.

80 Misc. 487 Court N.Y. App. Term English

Delivered by Guy, J.

Contents

Majority

p. 487
Isaac Goldowitz and Abraham Epstein, Appellants, v. Henry Kupfer & Co., Respondent.
(Supreme Court, Appellate Term, First Department,
May, 1913.)

Headnote

Statute of Frauds — not a defense — action to recover damages — sales —■ contracts.
Where an order made out on a blank printed by defendant, with its printed name and address at the top for the sale of goods to plaintiffs, gave the terms of sale, time of delivery and price of each item of goods, and was signed by one of the plaintiffs, and at the foot of said order a printed guaranty of
p. 488
the price coupled with the privilege of canceling the order was followed by the printed signature of defendant whose president testified that plaintiffs’ order was placed on defendant’s books as an order, the Statute of Frauds is not a defense in an action to recover damages for nondelivery of the goods.
A contract for the sale of articles to be manufactured and delivered which are not suitable for sale to others in the ordinary course of the seller’s business is not within the Statute of Frauds. ,
Appeal by the plaintiffs from a judgment of the City Court of the city of New York dismissing the complaint.
Henry I. Kowalsky (Robert L. Turk and Benj. Frindel, of counsel), for appellants.
Leo G. Rosenblatt, for respondent.

This is an action to recover damages for the nondelivery of goods alleged to have been sold by defendant to plaintiffs.

The defence relied upon at the trial was the Statute of Frauds, viz., that no valid sale was shown.

An order on a blank printed by defendant, with its name and address at the top, for the sale of the goods in question to the plaintiffs, giving the terms of sale, time of delivery, and price of each item of goods, wTas signed by one of the plaintiffs; At the foot of the order was a printed guaranty of the price, coupled with the privilege of canceling the order signed, in print, with the name of defendant. An unsigned letter to plaintiffs’ firm, with defendant’s name and address on the letter head, acknowledging the entry of plaintiffs’ order, was delivered to one of the plaintiffs. The defendant’s president testified that the plaintiffs’ order was placed upon its books as an order; but that its counsel later advised it that it was invalid.

p. 489
A printed signature will answer the requirements of the Statute of Frauds, and where a trader who is in the habit of delivering printed bills of parcels, to which his name is prefixed, delivers one containing the necessary particulars of the contract, it is sufficient. Browne Stat. Frauds, (5th ed.) 356.

It also appears that the contract for the sale of articles thereafter to be manufactured and delivered, and which are not suitable for sale to others in the ordinary course of the seller’s business, does not come within the Statute of Frauds. Warren Chemical & Mfg. Co. v. Holbrook, 118 N. Y. 586 , 593; Meyer Bros. Drug Co. v. McKinney, 137 App. Div. 541 , 545; affd., 203 N. Y. 533 ; Laws of 1911, chap. 571, § 85, subd. 2.

The judgment must be reversed and a new trial ordered, with costs to appellants to abide the event.

G-erard and Page, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.

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