De Waal v. Jamison

Headnote

De Waal v. Jamison, 176 App. Div. 756 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 30, 1917, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term in an action on contract. The complaint alleged that the plaintiff sold and delivered on August third 10,000 bags of raw sugar to the defendants at two and nine-thirty-seconds, cents per pound, cost and freight, the market price of the day, and that in consideration of this sale and delivery the defendants promised to replace 10,000 bags to the plaintiff at the same price out of sugars to arrive by a steamer to be designated by the defendants. The complaint further alleged a designation of sugars by the defendants on August eleventh, and a repudiation of the contract on August seventeenth, on which day the market price was five and one-half cents per pound, cost and freight. The difference between the two prices for 10,000 bags is $105,000, for which the plaintiff sued. In the court below it was held to be a contract for the sale of sugars and to be without a sufficient memorandum to satisfy the Statute of Frauds.