Waxelbaum v. Schloss

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 the 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 & Co.” labels were 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 refusel assigned their claim for damages to the plaintiff, who brought action thereon.

The defendants by their answer pleaded 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 $50, 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 1897, p. 510, c. 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:

“Messrs. Waxelbaum & Co.—Gentlemen: Please call at our New York office on receipt of this letter in reference to the goods you selected.”

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. 30 , 1 N. E. 41 ); but the whole contract must be collected from the writings (Wilson v. Lewiston Mill Co., 150 N. Y. 314 , 44 N. E. 959 , 55 Am. St. Rep. 680 ). 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 sign