Crabtree v. Elizabeth Arden Sales Corp.

• Decision Date: 21 January 1953
• Citation: 305 N.Y. 48
• Parties: NATE L. CRABTREE, Respondent, v. ELIZABETH ARDEN SALES CORPORATION, Appellant.
• Court: New York Court of Appeals Court of Appeals

305 N.Y. 48

NATE L. CRABTREE, Respondent, v. ELIZABETH ARDEN SALES CORPORATION, Appellant.

New York Court of Appeals

January 21, 1953

[Copyrighted Material Omitted]

COUNSEL

J. Howard Carter, John R. Schoemer, Jr., John J. Macchia and Arthur W. Knapp, Jr., for appellant. I. There is no written memorandum of plaintiff's alleged contract of employment sufficient to satisfy the Statute of Frauds. ( Carter, Macy Co. v. Matthews, 220 A.D. 679; Brauer v. Oceanic Steam Navigation Co., 178 N.Y. 339; Friedman & Co. v. Newman, 255 N.Y. 340; Standard Oil Co. v. Koch, 260 N.Y. 150; United Press v. New York Press Co., 164 N.Y. 406; Culotta v. Banana Sales Corp., 142 Misc. 149; Watson v. Gugino, 204 N.Y. 535; Martin v. New York Life Ins. Co., 148 N.Y. 117; Miller v. Burlington Mills Ribbon Corp., 304 N.Y. 600; Mesibov, Glinert & Levy v. Cohen Bros. Mfg. Co., 245 N.Y. 305.) II. The court below adopted an erroneous measure of damages. ( Toplitz v. Ullman, 2 Misc. 130; Griffin v. Oklahoma Nat. Gas Corp., 132 Kan. 843.)

Frank A. Fritz, Frank H. Platt, George Q. Slocum and Anthony T. Antinozzi for respondent. I. Plaintiff's employment was for a definite term and did not constitute an employmentat will. ( Braxton v. Mendelson, 233 N.Y. 122; Ferguson v. De Witt, 230 A.D. 778; Fellows v. Fairbanks Co., 205 A.D. 271; Aerated Products Co. v. Godfrey, 290 N.Y. 92; Matter of Aurelio [Cohen], 291 N.Y. 176; Drivas v. Lekas, 292 N.Y. 204; Gressing v. Musical Instrument Sales Co., 222 N.Y. 215; Mason v. New York Produce Exch., 127 A.D. 282; Breakey v. Lake Placid Co., 271 A.D. 586.)II. The contract of employment is evidenced by writings which together constitute a sufficient memorandum in compliance with the Statute of Frauds. ( Marks v. Cowdin, 226 N.Y. 138; Spiegel v. Lowenstein, 162 A.D. 443; Raubitschek v. Blank, 80 N.Y. 478; Webster v. Zielly, 52 Barb. 482; General Overseas Corp. v. Republic Pictures Int. Corp., 74 F.Supp. 698; Baxter v. Lustberg, 205 A.D. 673; Doughty v. Manhattan Brass Co., 101 N.Y. 644; Coe v. Tough, 116 N.Y. 273; Delaware Mills v. Carpenter Bros., 200 A.D. 324; Atlas Shoe Co. v. Lewis, 202 A.D. 244.) III. Plaintiff exercised reasonable care to mitigate damages. There was no abandonment of the employment or waiver of defendant's breach. ( Whitmarsh v. Littlefield, 46 Hun 418; Colloraff v. Hickson, Inc., 159 N.Y.S. 177; Milage v. Woodward, 186 N.Y. 252; Howard v. Daly, 61 N.Y. 362; Bassett v. French, 10 Misc. 672; Fuchs v. Koerner, 107 N.Y. 529; Briscoe v. Litt, 19 Misc. 5; McClelland v. Climax Hosiery Mills, 252 N.Y. 347; Toplitz v. Ullman, 2 Misc. 130; Richardson v. Hartmann, 68 Hun 9.) IV. Plaintiff is entitled prima facie to the amount of the unpaid salary for the unexpired term of the contract. ( Karas v. H. R. Laboratories, 271 A.D. 530, 297 N.Y. 494; Hollwedel v. Duffy-Mott Co., 263 N.Y. 95; Milage v. Woodward, 186 N.Y. 252; Sinclair v. Positype Corp. of America, 237 A.D. 525; Howard v. Daly, 61 N.Y. 362; Van Wyck v. Mannino, 256 A.D. 256; Preager v. Unity Shoemakers Corp., 257 A.D. 632.)

OPINION

FULD, J.

In September of 1947, Nate Crabtree entered into preliminary negotiations with Elizabeth Arden Sales Corporation, manufacturers and sellers of cosmetics, looking toward his employment as sales manager. Interviewed on September 26th, by Robert P. Johns, executive vice-president and general manager of the corporation, who had apprised him of the possible opening, Crabtree requested a three-year contract at$25,000 a year. Explaining that he would be giving up a secure well-paying job to take a position in an entirely new field of endeavor -- which he believed would take him some years to master -- he insisted upon an agreement for a definite term. And he repeated his desire for a contract for three years to Miss Elizabeth Arden, the corporation's president. When Miss Arden finally indicated that she was prepared to offer a two-year contract, based on an annual salary of $20,000 for the first six months, $25,000 for the second six months and $30,000 for the second year, plus expenses of $5,000 a year for each of those years, Crabtree replied that that offer was 'interesting'. Miss Arden thereupon had her personal secretary make this memorandum on a telephone order blank that happened to be at hand:

'EMPLOYMENT AGREEMENT WITH

NATE CRABTREE

At 681 -- 5th Ave

Date Sept 26-1947

6: PM

* * *

Begin

20000.

6 months

25000.

6 '

30000.

5000.

-- per

year

Expense money

[2 years to make good]

Arrangement with

Mr Crabtree

By Miss Arden

Present Miss Arden

Mr John

Mr Crabtree

Miss OLeary'

A few days later, Crabtree 'phoned Mr. Johns and telegraphed Miss Arden; he accepted the 'invitation to join the Arden organization', and Miss Arden wired back her 'welcome'. When he reported for work, a 'pay-roll change' card was made up and initialed by Mr. Johns, and then forwarded to the payroll department. Reciting that it was prepared on September 30, 1947, and was to be effective as of October 22d, itspecified the names of the parties, Crabtree's 'Job Classification' and, in addition, contained the notation that 'This employee is to be paid as follows:

'First six months of

employment

$20,000. per

annum

Next six months of

employment

25,000. ' '

After one year of

employment

30,000. ' '

Approved by RPJ [initialed]'

After six months of employment, Crabtree received the scheduled increase from $20,000 to $25,000, but the further specified increase at the end of the year was not paid. Both Mr. Johns and the comptroller of the corporation, Mr. Carstens, told Crabtree that they would attempt to straighten out the matter with Miss Arden, and, with that in mind, the comptroller prepared another 'pay-roll change' card, to which his signature is appended, noting that there was to be a 'Salary increase' from $25,000 to $30,000 a year, 'per contractual arrangements with Miss Arden'. The latter, however, refused to approve the increase and, after further fruitless discussion, plaintiff left defendant's employ and commenced this action for breach of contract.

At the ensuing trial, defendant denied the existence of any agreement to employ plaintiff for two years, and further contended that, even if one had been made, the statute of frauds barred its enforcement. The trial court found against defendant on both issues and awarded plaintiff damages of about $14,000, and the Appellate Division, two justices dissenting, affirmed. Since the contract relied upon was not to be performed within a year, the primary question for decision is whether there was a memorandum of its terms, subscribed by defendant, to satisfy the statute of frauds (Personal Property Law, § 31).¹

Each of the two payroll cards -- the one initialed by defendant's general manager, the other signed by its comptroller -- unquestionably constitutes a memorandum under the statute. That they were not prepared or signed with the intention of evidencing the contract, or that they came into existence subsequentto its execution, is of no consequence (see Marks v. Cowdin, 226 N.Y. 138, 145; Spiegel v. Lowenstein, 162 A.D. 443, 448-449; see, also, Restatement, Contracts, §§ 209, 210, 214); it is enough, to meet the statute's demands, that they were signed with intent to authenticate the information contained therein and that such information does evidence the terms of the contract. (See Marks v. Cowdin, supra, 226 N.Y. 138; Bayles v. Strong, 185 N.Y. 582, affg. 104 A.D. 153; Spiegel v. Lowenstein, supra, 162 A.D. 443, 448; see, also, 2 Corbin on Contracts [1951], pp. 732-733, 763-764; 2 Williston on Contracts [Rev. ed., 1936], pp. 1682-1683.) Those two writings contain all of the essential terms of the contract -- the parties to it, the position that plaintiff was to assume, the salary that he was to receive -- except that relating to the duration of plaintiff's employment. Accordingly, we must consider whether that item, the length of the contract, may be supplied by reference to the earlier unsigned office memorandum, and, if so, whether its notation, '2 years to make good', sufficiently designates a period of employment.

The statute of frauds does not require the 'memorandum * * * to be in one document. It may be pieced together out of separate writings, connected with one another either expressly or by the internal evidence of subject matter and occasion'. ( Marks v. Cowdin, supra, 226 N.Y. 138, 145; see, also, 2 Williston, op. cit., p. 1671; Restatement, Contracts, § 208, subd. [a].) Where each of the separate writings has been subscribed by the party to be charged, little if any difficulty is encountered. (See, e.g., Marks v. Cowdin, supra, 226 N.Y. 138, 144-145.) Where, however, some writings have been signed, and others have not -- as in the case before us -- there is basic disagreement as to what constitutes a sufficient connection permitting the unsigned papers to be considered as part of the statutory memorandum. The courts of some jurisdictions insist that there be a reference, of varying degrees of specificity, in the signed writing to that unsigned, and, if there is no such reference, they refuse to permit consideration of the latter in determining whether the memorandum satisfies the statute. (See, e.g., Osborn v. Phelps, 19 Conn. 63; Hewitt Grain & Provision Co. v. Spear, 222 Mich. 608.) That conclusion is based upon a constructionof the statute which requires that the connection between the writings and defendant's acknowledgment of the one not subscribed, appear from examination of the papers alone, without the aid of parol evidence. The other position -- which has gained increasing support over the years -- is that a sufficient connection between the papers is established simply by a reference in them to the same subject matter or transaction. (See, e.g., Frost v. Alward, 176 Cal. 691; Lerned v. Wannemacher, 91 Mass. 412.)The statute is not pressed 'to the extreme of a literal and rigid logic' ( Marks v. Cowdin, supra, 226 N.Y. 138, 144), and oral testimony is admitted to...