Scheck v. Francis

• Decision Date: 27 May 1970
• Citation: 26 N.Y.2d 466,260 N.E.2d 493,311 N.Y.S.2d 841
• Parties: , 260 N.E.2d 493 George SCHECK, Appellant, v. Connie FRANCIS et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 841

311 N.Y.S.2d 841

26 N.Y.2d 466, 260 N.E.2d 493

George SCHECK, Appellant, v. Connie FRANCIS et al., Respondents.

Court of Appeals of New York.

May 27, 1970.

Solomon Granett, New York City, for appellant.

Howard Breindel, and Michael I. Rudell, New York City, for respondents.

FULD, Chief Judge.

For many years, the plaintiff, George Scheck, had been the personal manager of defendant Connie Francis, a popular singer. He brings this suit against her and against her three business corporations, alleging a breach of employment agreements covering a five-year period. The complaint has been dismissed on the ground that it is barred by the Statute of Frauds.

In February, 1968, about a year after an earlier employment agreement had expired, the parties entered into negotiations for a new contract. The defendants' attorney, Marvin Levin, Esq., had submitted a number of proposed agreements for the plaintiff's approval which he found unsatisfactory. After a final negotiation session, Mr. Levin mailed to the plaintiff the four agreements here involved in quadruplicate, with a covering letter, dated April 15, 1968, requesting the plaintiff to 'sign all copies' and 'have Connie sign' them. ¹ It is urged--in reliance upon our decision in Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48, 110 N.E.2d 551--that these agreements, signed only by the plaintiff, and Mr. Levin's letter constitute, when taken together, a sufficient memorandum to satisfy the Statute of Frauds (General Obligations Law, Consol.Laws, c. 24--A, § 5--701, subd. 1.). According to the plaintiff, he signed the agreements promptly; they were, however, never signed by Miss Francis as called for by the letter. He continued to work for the defendants until August 12, 1968, when their attorney notified him that he was not to 'enter into new negotiations for (Connie Francis') services, unless and until she notifies you in writing to the contrary.' In March, 1969, after having unsuccessfully sought certain compensation and accountings in the interim, the plaintiff was advised by the defendants' new attorneys that there were 'no contracts in existence between (him) and our client.' The present suit for damages followed.

It is well settled that, if the parties to an agreement do not intend it to be binding upon them until it is reduced to writing and signed by both of them, they are not bound and may not be held liable until it has been written out and signed. (See Brause v. Goldman, 9 N.Y.2d 620, 210 N.Y.S.2d 225, 172 N.E.2d 78; Harvey v. General Cable Corp., 2 N.Y.2d 986, 163 N.Y.S.2d 600, 143 N.E.2d 339; Schwartz v. Greenberg, 304 N.Y. 250, 254, 107 N.E.2d 65, 67.) In the Schwartz case (304 N.Y. 250, 107 N.E.2d 65, Supra), for instance, involving the purchase and sale of stock, the parties met for the purpose of signing a written contract dealing with the transaction. Each signed his own copy but, because the check offered by the buyer was not certified, each picked up his contract and left, arranging to meet the next day. The defendant then refused to go through with the agreement, and this court upheld a determination in his favor on the ground that '(i)t is entirely plain, * * * that the parties did not intend to be bound until a written agreement had been signed and delivered' (304 N.Y., at p. 254, 107 N.E.2d, at p. 67).

The writings before us likewise evidence the intention of the parties not to be bound until the agreements were signed. The plaintiff urges that there was, at least, a triable issue whether Mr. Levin's letter constituted proof that the parties had agreed upon the terms of the contracts and, hence, was susceptible of being accepted as a memorandum of those contracts. We do not agree. It appears quite clear, from Mr. Levin's letter alone, that the agreements were to take effect only after both parties had signed them. Thus, he had instructed the plaintiff that he was to sign them and 'have Connie sign' them, expressly advising him to call if there were 'any questions or comments'. Although the agreements themselves were not required to be delivered to the plaintiff's attorney (Mr. Granett) before the parties had signed, a copy of the covering letter was set to him. This combination of circumstances unquestionably gave the plaintiff an opportunity to decline to go through with the deal before he signed. Certainly, the defendant Francis enjoyed the same privilege, and she never did sign. In short, both parties must plainly have understood that the agreements were to take effect only after they had signed them and, until that time, the matter was still in the stage of negotiations.

The plaintiff's reliance upon the Crabtree case (305 N.Y. 48, 110 N.E.2d 551, Supra) is misplaced. We there held that the memorandum necessary to satisfy the Statute of Frauds may be "pieced together out of separate writings, connected with one another either expressly or by the internal evidence of subject-matter and occasion" and that, in case one of the writings is unsigned, they may be 'read together, provided that they clearly refer to the same subject matter or transaction.' However, we expressly declared, that all of the terms of the contract 'must be set out in the various writings presented to the court, and at least one writing, the one establishing a contractual relationship between the parties, must bear the signature of the party to be charged, while the unsigned document must on its face refer to the same transaction as that set forth in the one that was signed' (pp. 55--56, 110 N.E.2d p. 554). Furthermore, the court pointed out, although a particular signed writing need not have been 'prepared or signed with the intention of evidencing the contract' (p. 53, 110 N.E.2d p. 553), it must have been subscribed 'with intent to authenticate the information therein' and that information must 'evidence the terms of the contract' (305 N.Y., at p. 54, 110 N.E.2d, at p. 553; see, also, Mesibov, Glinert & Levy v. Cohen Bros. Mfg. Co., 245 N.Y. 305, 310, 157 N.E. 148, 149.)

In the present case, unlike Crabtree, the letter signed by the defendants' attorney (Mr. Levin) does not serve to establish a contractual relationship between the parties. It says nothing about the terms of the contracts and authenticates no information contained in them. Quite obviously, it was written for the sole purpose of forwarding the documents to the parties for signature, and it is impossible to infer from the letter an intent either to bring a contract into being or to establish one of its essential terms. It was but a step in the negotiations looking toward contracts which were to come into existence only upon their being signed by the parties. As Justice Eager, writing for the Appellate Division, put it, 'the letter drafted by defendants' attorney, as stated on its face, was intended merely as a means of transmittal to the plaintiff of unexecuted contracts * * *. The letter...