Rosensweig v. Salkind

Decision Date17 December 1957
PartiesHarry ROSENSWEIG, Plaintiff-Respondent, v. Leon SALKIND Defendant-Appellant.
CourtNew York Supreme Court — Appellate Division

Murray Koenig, New York City, of counsel (Morton Greenspan, New York City, with him on the brief), for defendant-appellant.

Morris C. Kimmel, New York City, for plaintiff-respondent.

Before PECK, P. J., and BOTEIN, FRANK, BERGAN and BASTOW, JJ.

MARTIN M. FRANK, Justice.

The defendant appeals from a judgment awarded to the plaintiff after a non-jury trial. The action was predicated upon an oral agreement alleged to have been made on or about April 1, 1955, for the sale by the plaintiff to the defendant of 50 shares of common stock in a corporation in which both parties together with one Scheiner held equal stock interests.

Since it is conceded that the contract upon which the action was predicated is oral, and is for the sale of goods valued in excess of the sum of $50, it would, without more, be violative of the Statute of Frauds (Section 85, Personal Property Law). The plaintiff, however, contends that the statute is not a bar because there was an acceptance of the goods within the meaning of the section, by conduct spelling out the assent of the buyer to become the owner of the specified goods (Subd. 3).

We cannot, from the record, find justification for that conclusion. Even though the conversation, which it is claimed established the contract took place and a price was fixed for the securities, the evidence indicates that thereafter the defendant's lawyer prepared written agreements providing for the transfer of stock and, among other things, for an assignment to the defendant of an indebtedness due the plaintiff from Scheiner. He also prepared a number of releases flowing to and from the parties hereto and the corporation and a third person, whose name appears as owner on the stock certificate, and who it is claimed was the plaintiff's nominee. It thus appears from the exhibits offered by the plaintiff, that the transaction involved more than the bare sale of a stock interest. The papers were forwarded to the plaintiff's representative with a covering letter as follows:

'Enclosed herewith is draft of agreement, releases and assignments, in connection with the proposed settlement concerning the above.

'Will you please go over same, and if it is satisfactory, advise me, and I will have them executed, and arrange to meet with you within the next day or two for the purpose of concluding this matter.'

These papers were never executed by the plaintiff, never returned to the defendant, and no further meetings were held to discuss the 'draft of agreement' or the 'proposed settlement' referred to in the letter.

The plaintiff urges that the conduct of the defendant in placing a lock on the premises occupied by the corporation, and the failure to send the plaintiff monthly statements were demonstrative of the conduct referred to in Subdivision 3, Section 85 of the Personal Property Law, and established an acceptance of the goods sold, thereby making the oral agreement enforceable.

The plaintiff's contention that an oral contract was executed is belied by his proof. More than a month after the oral contract was allegedly made, he wrote the second of two letters to the defendant which urged, 'I insist that you get in touch with Ted, sign the papers, and let us close this transaction' (Emphasis supplied.) In these letters there was no assertion that the contract had been made or that there was a breach. On the contrary, there was an insistent request that the transaction be concluded by the execution of the documents awaiting signature. Moreover, the plaintiff's efforts to sell the securities to others both before and after the date of the alleged oral agreement negatives his claim that title passed to the defendant.

We cannot hold that an enforceable contract pursuant to the statute was established by the credible evidence sufficient to support the judgment, and that the 'conduct' relied upon was of such a character as to constitute an acceptance, sufficient to take the oral agreement out of the statute.

Where a written agreement is contemplated, a mere oral understanding is insufficient, in the absence of proof that the parties intended to be bound by it (Schwartz v. Greenberg...

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7 cases
  • Jim Bouton Corp. v. Wm. Wrigley Jr. Co.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 3, 1990
    ...are satisfactory to your clients and we can proceed to prepare whatever contract documents may be required."); Rosenzweig v. Salkind, 5 A.D.2d 58, 60, 169 N.Y.S.2d 213 (1957), aff'd, 5 N.Y.2d 902, 183 N.Y.S.2d 82, 156 N.E.2d 712 (1959) (mem.) ("Will you please go over same, and if it is sat......
  • Viacom International Inc. v. Tandem Productions, Inc.
    • United States
    • U.S. District Court — Southern District of New York
    • January 4, 1974
    ...oral understanding is insufficient, in the absence of proof that the parties intended to be bound by it." Rosenzweig v. Salkind, 5 A.D.2d 58, 169 N.Y.S.2d 213 (1st Dept. 1957). See Schwartz v. Greenberg, 304 N.Y. 250, 107 N.E.2d 65 (1962). On the other hand, where parties have reached an ag......
  • Hartburg v. Bullock
    • United States
    • New York Supreme Court
    • March 18, 1958
    ...If they were not, defendant cannot succeed. Woolley v. Stewart, 222 N.Y. 347, 352-353, 118 N.E. 847, 848; Rosenweig v. Salkind, 5 A.D.2d 58, 60-61, 169 N.Y.S.2d 213, 215-216; Linden Trans-Mix Corp. v. Griffin, 5 Misc.2d 188, 158 N.Y.S.2d 639. It may be that after trial of the issue raised b......
  • Lizza and Sons, Inc. v. D'ONFRO
    • United States
    • U.S. District Court — District of Massachusetts
    • May 29, 1959
    ...statement of their understanding that he could reproach D'Onfro for a failure to live up to that understanding. Cf. Rosensweig v. Salkind. 5 A.D.2d 58, 169 N.Y.S.2d 213, 215. 24. No contract having been concluded on July 25, none was concluded later. Plaintiff's claim that when it returned ......
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