Oswald v. Allen

• Decision Date: 14 October 1969
• Docket Number: Docket 33053.,No. 34,34
• Citation: 417 F.2d 43
• Parties: Dr. Werner OSWALD, Plaintiff-Appellant, v. Jane B. ALLEN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

417 F.2d 43 (1969)

Dr. Werner OSWALD, Plaintiff-Appellant, v. Jane B. ALLEN, Defendant-Appellee.

No. 34, Docket 33053.

United States Court of Appeals Second Circuit.

Argued September 16, 1969.

Decided October 14, 1969.

L. Reyner Samet, New York City, for plaintiff-appellant.

Sidney D. Rosoff, New York City (Parker, Duryee, Zunino, Malone & Carter, New York City, Stephen Charnas, New York City, on the brief), for defendant-appellee.

Before MOORE, HAYS and ANDERSON, Circuit Judges.

MOORE, Circuit Judge:

Dr. Oswald, a coin collector from Switzerland, was interested in Mrs. Allen's collection of Swiss coins. In April of 1964 Dr. Oswald was in the United States and arranged to see Mrs. Allen's coins. The parties drove to the Newburgh Savings Bank of Newburgh, New York, where two of her collections referred to as the Swiss Coin Collection and the Rarity Coin Collection were located in separate vault boxes. After examining and taking notes on the coins in the Swiss Coin Collection, Dr. Oswald was shown several valuable Swiss coins from the Rarity Coin Collection. He also took notes on these coins and later testified that he did not know that they were in a separate "collection." The evidence showed that each collection had a different key number and was housed in labeled cigar boxes.

On the return to New York City, Dr. Oswald sat in the front seat of the car while Mrs. Allen sat in the back with Dr. Oswald's brother, Mr. Victor Oswald, and Mr. Cantarella of the Chase Manhattan Bank's Money Museum, who had helped arrange the meeting and served as Dr. Oswald's agent. Dr. Oswald could speak practically no English and so depended on his brother to conduct the transaction. After some negotiation a price of $50,000 was agreed upon. Apparently the parties never realized that the references to "Swiss coins" and the "Swiss Coin Collection" were ambiguous. The trial judge found that Dr. Oswald thought the offer he had authorized his brother to make was for all of the Swiss coins, while Mrs. Allen thought she was selling only the Swiss Coin Collection and not the Swiss coins in the Rarity Coin Collection.

On April 8, 1964, Dr. Oswald wrote to Mrs. Allen to "confirm my purchase of all your Swiss coins (gold, silver and copper) at the price of $50,000.00." The letter mentioned delivery arrangements through Mr. Cantarella. In response Mrs. Allen wrote on April 15, 1964, that "Mr. Cantarella and I have arranged to go to Newburgh Friday April 24." This letter does not otherwise mention the alleged contract of sale or the quantity of coins sold. On April 20, realizing that her original estimation of the number of coins in the Swiss Coin Collection was erroneous, Mrs. Allen offered to permit a re-examination and to undertake not to sell to anyone else. Dr. Oswald cabled from Switzerland to Mr. Alfred Barth of the Chase Manhattan Bank, giving instruction to proceed with the transaction. Upon receiving the cable, Barth wrote a letter to Mrs. Allen stating Dr. Oswald's understanding of the agreement and requesting her signature on a copy of the letter as a "mere formality." Mrs. Allen did not sign and return this letter. On April 24, Mrs. Allen's husband told Barth that his wife did not wish to proceed with the sale because her children did not wish her to do so.

Appellant attacks the conclusion of the Court below that a contract did not exist since the minds of the parties had not met. The opinion below states:

"* * * plaintiff believed that he had offered to buy all Swiss coins owned by the defendant while defendant reasonably understood the offer which she accepted to relate to those of her Swiss coins as had been segregated in the particular collection denominated by her as the `Swiss Coin Collection\' * * *."

285 F.Supp. 488, 492 (S.D.N.Y. 1968). The trial judge based his decision upon his evaluation of the credibility of the witnesses, the records of the defendant, the values of the coins involved, the circumstances of the transaction and the reasonable probabilities. Such findings of fact are not to be set aside unless "clearly erroneous." Fed.R.Civ.P. 52(a). There was ample evidence upon which the trial judge could rely in reaching this decision.

In such a factual situation the law is settled that no contract exists. The Restatement of Contracts in section 71(a) adopts the rule of Raffles v. Wichelhaus, 2 Hurl. & C. 906, 159 Eng. Rep. 375 (Ex. 1864). Professor Young states that rule as follows:

"when any of the terms used to express an agreement is ambivalent, and the parties understand it in different ways, there cannot be a contract unless one of them should have been aware of the other\'s understanding."

Young, Equivocation in Agreements, 64 Colum.L.Rev. 619, 621 (1964). Even though the mental assent of the parties is not requisite for the formation of a contract (see Comment to Restatement of Contracts § 71 (1932)), the facts found by the trial judge clearly place this case within the small group of exceptional cases in which there is "no sensible basis for choosing between conflicting understandings." Young, at 647. The rule of Raffles v. Wichelhaus is applicable here.

As a second basis for decision, the Court below concluded that there was no sufficient memorandum to satisfy the Statute of Frauds. This is a rejection of Dr. Oswald's contention that Mrs. Allen's bare reference in her letter of April 15 to the delivery arrangements, even when read with the Dr. Oswald letter of April 8, is sufficient to satisfy the statute. The applicable statute at the time of the transaction, section 85, subd. 1(a) of the New York Personal Property Law, McKinney's Consol.Laws, c. 41, states that there must be:

"* * * some note or memorandum in writing signed by the party to be charged or his agent in that behalf, sufficient to indicate that a contract to sell or a sale has been made between the parties and showing the quantity of goods sold or contracted to be sold * * *."

The original version of this statute, as enacted in 1911, had been construed rather strictly to require that all the terms of the agreement be in writing. 1960 Leg.Doc. No. 65(F) McKinney's 1960 Session Laws of New York, at 1826. The strictness of this rule was lessened by the doctrine that several letters or other writings could be resorted to for the agreed upon terms. Nevertheless, these writings had to be connected "either expressly or by the internal evidence of subject-matter and occasion." Marks v. Cowdin, 226 N.Y. 138, 145, 123 N.E. 139, 141 (1919). In Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48, 55, 110 N.E.2d 551, 554 (1953) the New York Court of Appeals adopted the rule "permitting the...