Blum v. Blum

is that the defendant agrees to deliver to the plaintiff the goods therein referred to upon the terms and conditions specified. The writing seems to me to be clear evidence of the existence of such an agreement on the part of the defendant. By its terms it is stated to be a “copy of order placed by” the defendant “for the account of” the plaintiff. It specifies the date of delivery, the number of pieces of goods to be delivered, and the length, trade-name, Quality, width, and price of the articles, and provides the manner in which they are to be delivered. Such a writing may not constitute a contract or agreement, but it seems to me clear that it is a sufficient note or memorandum of such a contract or agreement. If the writing were a complete contract, all the terms of which were fully set forth, the action would have been upon the written contract, and no question as to the statute of frauds would have arisen. It is because the contract or agreement is not written that the necessity for a note or memorandum thereof arises, in order to permit the plaintiff to maintain his action upon the oral - agreement, which is evidenced by a writing. “The memorandum of an agreement sufficient to satisfy the statute of frauds,” declares the American & English Encyclopaedia of Law (vol. 8, p. 710), “must not be confounded with a writing which constitutes an agreement of itself. The real agreement is never written when a memorandum is necessary.” I think that the instrument under consideration is a note or memorandum of an agreement by the defendant to deliver to the plaintiff the goods referred to upon the terms specified. Such is the fair and reasonable interpretation of the writing. In construing the language of commercial instruments it must be borne in mind that such instruments are often hurriedly drawn by those who are unacquainted with the exact requirements and phraseology of statutory enactments. Judicial construction of such instruments is to be made with due regard to this fact, rather than with a view of applying narrow and technical rules. Any other rule of construction would defeat the true intent of the parties.

The defendant, however, attempts to show that the writing under consideration is susceptible of another construction. He contends that it means that he placed an order for the account of the plaintiff with a foreign manufacturer for certain goods to be delivered at certain times. This construction seems to me to be very strained, and to do violence to the clear meaning of the words used. Especially is this construction inconsistent with the unsuccessful attempt by the defendant to perform the very contract which the plaintiff asserts was made. The learned counsel for the defendant cites the cases of Drake v. Seaman, 97 N. Y. 230 , and Brigg v. Hilton, 99 N. Y. 526 , 3 N. E. 51 , 52 Am. Rep. 63 , as sustaining bis view that the writing is insufficient to comply with the statute. An examination of these cases makes it clear that no support for his contention can be derived from them. In the case of Drake v. Seaman, supra, the writing then under consideration was very vague and indefinite. It did not state what the money referred to was to be paid for, or that it was to be paid absolutely, and the instrument was clearly susceptible of several different constructions from that which the plaintiff sought to place upon it. That case, therefore, manifestly furnishes no guide in construing the instrument before us. The case of Brigg v. Hilton, supra, is even more clearly inapplicable to the question under consideration. That was an action to recover the price of goods, and the defendant put in evidence a receipt of an order for goods, stating the time of delivery and price, and attempted to prove a paroi warranty as to the quality of the goods. This the appellate court held the defendant had the right to do. No question was before the court as to whether or not the receipt or memorandum was sufficient to take the case out of the operation of the statute of frauds. The statute of frauds was in no way involved or considered. The court simply held that the receipt or memorandum was not a contract which would estop the defendant from proving a paroi warranty as to quality. No special form of memorandum is necessary to comply with the statute. Any writing, properly executed,, which evidences the agreement, is sufficient, no matter how crude its character may be. Thus a bill of parcels (Batturs v. Sellers, 5 Har. & J. 118, 9 Am. Dec. 492 ), a receipt (Raubitschek v. Blank, 80 N. Y. 481 ; Cosack v. Descoudres, 1 McCord, 425 , 30 Am. Dec. 681 ; Fulton v. Robinson, 55 Tex. 404 ; Coles v. Trecothick, 9 Ves. Jr. 234), and an account stated (Barry v.

Rose & Putzel, for appellant.

Goldsmith & Rosenthal, for respondents.