Brauer v. Oceanic Steam Nav. Co.

• Citation: 70 N.E. 863,178 N.Y. 339
• Parties: BRAUER v. OCEANIC STEAM NAV. CO., Limited.
• Decision Date: 26 April 1904
• Court: New York Court of Appeals

178 N.Y. 339

70 N.E. 863

BRAUER

v.OCEANIC STEAM NAV. CO., Limited.

Court of Appeals of New York.

April 26, 1904.

Appeal from Supreme Court, Appellate Division, First Department.

Action by William W. Brauer against the Oceanic Steam Navigation Company, Limited. From a judgment of the Appellate Division overruling plaintiff's exceptions, and denying a motion for new trial, and directing judgment for defendant (82 N. Y. Supp. 1095), plaintiff appeals. Affirmed.

Lyman E. Warren and Ira D. Warren, for appellant.

Everett P. Wheeler, for respondent.

CULLEN, J.

The action was brought to recover damages for the breach of an alleged written contract whereby the defendant agreed to let to the plaintiff the cattle space in all its steamships plying between the city of New York and the city of Liverpool for the purpose of transporting cattle thereon from December 1, 1897, to the 30th day of November, 1898, in consideration whereof the plaintiff agreed to pay 42s. 6d. sterling per head. The defendant denied making the agreement. The defendant is the owner of what is commonly known as the White Star Line. In October, 1897, the plaintiff called on the defendant's agent in the city of New York, and applied for the exclusive control of the facilities of the defendant's steamers for the transportation of cattle for the period of one year. He stated to the agent that he had already secured an option on the American Transport Line for the same service for a similar period, that he was acting as broker for the people interested in the cattle market in England, and that, to make the plan or scheme of the plaintiff and his associates successful, it was necessary that he should have control of the cattle transportation of both lines. Thereupon negotiations were had concerning the terms and conditions of the proposed contract, which included a number of details, such as the length of notice to be given to the plaintiff of the proposed time of sailing of any steamer; the sum for which the cattle should be insured by the defendant; the erection of stalls; the carriage of the necessary feed for the cattle; the transportation of men to attend the cattle, and their return to this country; demurrage for any delay in the sailing of the vessel caused by the shipper; compensation to the plaintiff in case, after notice given, there should be delay in sailing; and other incidents to which it is unnecessary to specifically refer. According to the plaintiff's testimony, in these oral negotiations all the details and conditions necessary to a contract were agreed upon, except the price to be paid for the transportation of the cattle, and the payment of brokerage for the charter party. As to these matters the agent stated that he would telegraph to his principalsin Europe before giving the plaintiff a definite answer. In this state of the negotiations, the plaintiff went to Chicago, and while he was there the following telegraphic correspondence passed between the parties:

‘New York, Oct. 25th, 1897. W. W. Brauer, Auditorium Annex, Chicago: Am ready to close all White Star steamers carrying cattle December 1st, 1897, to November 30th, 1898, inclusive, 42/6 insured. Maximum numbers our call subject to your giving satisfactory guarantee, Liverpool, November 15th, but decline positively, pay brokerage subject to reply by noon to-morrow (Tuesday). [Signed] H. Maitland Kersey.’

‘Dated Chicago, Ill., Oct. 26. To H. Maitland Kersey, White Star Line, Broadway: Accept your proposition, confirm closing your boats for one year. Brauer.’

‘Dated New York, oct. 26. To W. W. Brauer, Aud. Annex: Message received. Consider space closed. H. Maitland Kersey.’

On the plaintiff's return to the city of New York, a few days after this correspondence, he called on the defendant's agent, and the latter prepared a written contract for the plaintiff to sign. Plaintiff declined to execute the proposed contract, claiming that its terms varied substantially from those agreed upon in the conversations between the parties. Defendant's agent insisted he must sign that, or the negotiations would terminate. The plaintiff persisted in his refusal, and thereupon the defendant repudiated any obligation in the matter. Thereafter the plaintiff brought this action for damages for the defendant's breach of contract. At the close of the evidencethe learned trial judge, in obedience to a decision of the Appellate Division made on a previous appeal in the action, dismissed the complaint on the ground that no completed contract had been entered into by the parties. This disposition of the case has been affirmed by the Appellate Division, and an appeal is now taken to this court.

We very much doubt whether the ground on which the decisions of the courts below have proceeded can be sustained. If oral negotiations of the parties were sufficient to establish a binding contract, we are inclined to the view that under the plaintiff's testimony the case would have been for the jury. He testified to an agreement upon all details sufficient to constitute a working contract. It is true that both parties expected that subsequently a formal written contract should be executed. But such an expectation or intent did not abrogate the force of the previous agreement as an obligatory contract. Pratt v. Hudson R. R. R. Co., 21 N. Y. 305;Sanders v. Pottlitzer Bros. F. Co., 144 N. Y. 209, 39 N. E. 75,29 L. R. A. 431, 43 Am. St. Rep. 757;Raubitschek v. Blank, 80 N. Y. 480. This doctrine the learned Appellate Division fully conceded, but was of opinion that some of the terms of the agreement remained unsettled. This, as already said, could not be so held as a matter of law, but, on the evidence, presented a question of fact for the jury. It is unnecessary, however, to pursue the discussion, as we think the alleged agreement, which was not to be performed within the term of one year, was void under the statute of frauds.

It is urged that the defendant is not in a position to raise this objection, the statute not having been pleaded. Ever since the decision in Crane v. Powell, 139 N. Y. 379, 34 N. E. 911, the law has been settled in this state-whatever uncertainty there may have been on the subject before that-that, to avail himself of the defense of the statute of frauds, the defendant must, in a proper case, plead the statute. It is to be borne in mind, however, that in the case now before us the plaintiff declared on a written contract, and ‘the statute concerns oral contracts only. Written contracts, of whatever nature, are untouched by its provisions.’ Browne on Frauds, § 344a. It is difficultto see how the defendant could plead that a written contract was not reduced to writing, nor any note or memorandum thereof made in writing. If it be possible for such a plea to be true, it can only be true in the sense that it charges that the written contract was not made at all. This, however, the defendant has sufficiently pleaded, for it has specifically denied the allegation of the complaint that a written contract was executed. Proof by the plaintiff of an oral contract, instead of a written contract, did not constitute any such variance as requir...