Poel v. Brunswick-Balke-Collender Co. of New York
| Decision Date | 23 November 1915 |
| Citation | 216 N.Y. 310,110 N.E. 619 |
| Parties | POEL, et al., v. BRUNSWICK-BALKE-COLLENDER CO. OF NEW YORK. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Action by Frans Poel and another, copartners doing business as Poel & Arnold, against the Brunswick-Balke-Collender Company of New York. From an order of the Appellate Division, First Department (144 N.Y.Supp. 725), and the judgment entered thereon, unanimously affirming a judgment rendered in favor of plaintiffs, defendant appeals. Reversed, and new trial granted.
Irwin Untermyer, of New York City, for appellant.
Aaron C. Thayer, of New York City, for respondents.
In this action the plaintiffs sued to recover damages from this defendant for the breach of an executory contract. The plaintiffs are the general partners of the limited partnership of Poel & Arnold. The defendant is a corporation organized under the laws of the state of New York. The theory of the action is that the defendant agreed to accept and pay for certain rubber which the plaintiffs agreed to sell to it, and that the refusal of the defendant to accept and pay for said rubber caused a breach of that contract. In the transaction between the parties the defendant was represented by one C.R. Rogers, who carries on negotiations in behalf of the defendant and signed the letters purporting to come from the defendant, and which will be referred to below. In the court below several questions were litigated, viz., whether Rogers had authority to represent the defendant, and whether there was a contract and a sufficient written memorandum of such contract to satisfy the requirements of the statute of frauds. In our discussion of this case we shall assume, without deciding, that Rogers was authorized to represent the defendant in the action which he took.
[1][2] The plaintiffs contend that the unanimous affirmance by the Appellate Division of the finding that the contract alleged was made makes it impossible for this court to review the question whether there was a contract between the parties. The unanimous decision of the Appellate Division doubtless imports that there is evidence supporting or tending to sustain the findings of fact made by the trial court. Marden v. Dorthy, 160 N.Y. 39, 46, 54 N.E. 726, 46 L.R.A. 694. In the case under review, however, it is evident that the contract which the findings declare to exist is based upon the letters or writings which passed between the parties, and these letters are included in the findings. The question of law, whether these writings constitute a contract, and, if so, whether they satisfy the provisions of the state of frauds, survives the unanimous decision of the Appellate Division, and is subject to review by this court. If there was no contract between the parties it necessarily follows that the letters and writings relied upon by the plaintiffs as constituting the note or memorandum which evidenced the contract cannot be held to comply with the requirements of the state of frauds. The plaintiffs contend that on April 2, 1910, the defendant made an oral offer to the plaintiffs which the plaintiffs accepted in writing on April 4th, and that the contract so made is evidenced by the letter of January 7, 1911, which was signed by the defendant and thus the requirements of the statute of frauds were satisfied. The initial difficulty in the way of accepting this contention is that it leaves out of consideration altogether the defendant's letter of April 6th, and would have us determine the rights of the parties upon the letters of April 2d and 4th and the defendant's letter of January 7th and close our eyes entirely to the intervening letter of the defendant of April 6th. Moreover, the courts below found that the transaction between the parties was set forth in the four letters referred to. Another difficulty in the way of accepting this contention is that the plaintiffs must stand or fall upon the writings. The plaintiffs cannot prevail upon the theory that the writings express a contract, different in its terms and conditions from the contract which the parties entered into. In order to satisfy the requirements of the statute of frauds the written note or memorandum must include all the terms of the completed contract wich the parties made. It is not sufficient that the note or memorandum may express the terms of a contract. It is essential that it shall completely evidence the contract which the parties made. If instead of proving the existence of that contract, it establishes that there was in fact no contract or evidenced a contract in terms and conditions different from that which the parties entered into, it fails to comply with the statute. Juilliard v. Trokie, 139 App.Div. 530, 124 N.Y.Supp. 121, affirmed 203 N.Y. 604, 96 N.E. 1117;Leach v. Well, 129 App.Div. 688, 114 N.Y.Supp. 234;Davis v. Shields, 26 Wend. 341;Wright v. Weeks, 25 N.Y. 153.
The application of this principle to the facts of the present case makes it necessary that we should disregard the alleged oral agreement which is said to have preceded the written communications that were exchanged between the parties and confine our attention to the writings. There are in this case four writings, and upon three of them this controversy must be determined. They set forth with accuracy and precision the transaction between the parties. The oral evidence that was presented is in no way inconsistent with the writings, and if it were, the spoken words could not be permitted to prevail over the written. The writings referred to are as follows:
Poel & Arnold, 227 Broadway.
New York, April 2, 1910.
Brunswick-Balke-Collender Co., Long Island City, L.I.-Gentlemen: As per telephonic conversation with your Mr. Rogers today, this is to confirm having your offer of $2.42 per pound for 12 tons Upriver Fine Para Rubber, for shipment either from Brazil or Liverpool, in equal month parts January to June, 1911, about which we will let you know upon receipt of our cable reply on Monday morning.
Per W.J. Kelly.
New York, April 4, 1910.
Brunswick-Balke-Collender Co., Long Island City, L.I.-Gentlemen: Inclosed, we beg to hand you contract for 12 tons Upriver Fine Para Rubber, as sold you today, with out thanks for the order.
Per W.J. Kelly.
Inclosed with this letter was the following:
Apr. 4/10
Sold to You:
For equal month shipments January to June, 1911, from Brazil and/or Liverpool, about twelve (12) tons Upriver Fine Para Rubber at two dollars and forty-two cents ($2.42) per pound: payable in U.S. gold or its equivalent, cash twenty (20) days from date of delivery here.
On April 6th Rogers sent the following order to the plaintiffs. It is party printed and partly written. The part in writing is italicized:
Purchase Dep't
This number must appear on Invoices and Cases
Review Ave., Fox and Marsh Sts.
Long Island City, 4/6, 1910.
M. Poel and Arnold, 177 Broadway, N.Y.C.
Please deliver at once the following, and send invoice with goods:
About 12 tons Upriver Fine Para Rubber at 2.42 per lb. Equal monthly shipments January to June, 1911.
Goods on this order must be delivered when specified. In case you cannot comply, advise us by return mail stating earliest date of delivery you can make, and await our further orders.
The acceptance of this order which in any event you must promptly acknowledge will be considered by us as a guaranty on your part of prompt delivery within the specified time.
Terms: F.O.B.
Per C.R. Rogers.
January 7, 1911.
Messrs. Poel & Arnold, No. 277 Broadway, City-Gentlemen: We beg herewith to advise you that within the past few weeks there has come to our attention through a statement made to us for the first time by Mr. Rogers, information as to certain transactions had by him with you in the past, and especially as to a transaction in April last relating to 12 tons of crude rubber. Mr. Rogers had no authority to effect any such transaction on our account, nor had we any notice or knowledge of his action until he made a voluntary statement disclosing the facts within the past few weeks.
In order that you may not be put to any unnecessary inconvenience, we feel bound to give you notice at the earliest opportunity after investigating the facts, that we shall not recognize these transactions or any others that may have been entered into with Mr. Rogers which were without our knowledge or authority.
Per Chas. P. Miller, Vice-Prest.
[3][4] The first letter is of no legal significance, and only the other three need be considered. The fundamental question in this case is whether these writings constitute a contract between the parties. If they do not, no question as to whether these writings meet the requirements of the statute of frauds need be considered. An analysis of their provisions will show that they do not constitute a contract. It is not contended and in face of the provisions of the plaintiffs' letter of April 4th it cannot be claimed, that the letter is in itself a contract. It is a mere offer or proposal by the plaintiffs that the defendant should accept the proposed contract inclosed which is said to embody an oral order that the defendant had that day given the plaintiffs. The object of this letter was to have the terms of the oral agreement reduced to writing so that there could be no uncertainty as to the terms of the contract. The letter of the defendant of April 6th did not accept this offer. If the intention of the defendant had been to accept the offer made in the plaintiffs' letter of April 4th, it...
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