Spiegel v. Lowenstein
Decision Date | 06 May 1914 |
Citation | 147 N.Y.S. 655,162 A.D. 443 |
Parties | WOLFE M. SPIEGEL, Respondent, v. BENJAMIN LOWENSTEIN, Appellant. |
Court | New York Supreme Court |
APPEAL by the defendant, Benjamin Lowenstein, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 8th day of February, 1913, upon the verdict of a jury rendered by direction of the court dismissing the defendant's counterclaim and granting plaintiff the relief demanded in the complaint.
Frankenthaler & Kaufmann [E. W. Personius and Alfred Frankenthaler of counsel], for the appellant.
Lewis E. Mosher, for the respondent.
The serious question involved upon this appeal is whether the communications by letter and telegram which passed between the parties hereto following the making of a verbal contract for the sale and delivery by respondent to appellant of personal property exceeding fifty dollars in value were sufficient to render the contract valid under the Statute of Frauds. The answer admitted the cause of action set forth in the complaint, but pleaded as a counterclaim damages to the amount of one thousand six hundred and seventy-two dollars and fifty cents by reason of the failure of the respondent to deliver to the appellant twenty-five tons of copper wire, and eighteen tons of brass and bronze turnings which appellant claimed to have verbally purchased of respondent March 20 1912. The reply denied the allegations of the counterclaim and as a separate defense pleaded the Statute of Frauds. At the close of appellant's evidence the respondent moved for a dismissal of the counterclaim upon the grounds that the evidence was insufficient to establish the authority of respondent's son to make the sale, and that the conversation by telephone and the subsequent letters and telegrams which passed between the parties were not sufficient to satisfy the Statute of Frauds. The court granted the motion upon the latter ground, and directed a verdict for the respondent for the amount demanded in the complaint, and it is from the judgment entered thereon that this appeal has been taken. It appears from the record that on March 20, 1912, the respondent, whose office was in the city of Elmira, and between whom and the appellant dealings had been had from time to time in turnings and copper wire, wrote the appellant, whose office was in the city of New York, asking the best price the appellant could pay for brass turnings and manganese bronze. Upon receiving the letter the following morning, appellant's son called respondent's office by telephone, and respondent being absent from the city, a conversation was had between respondent's son and appellant's son in which, after some negotiations as to price, it was agreed that respondent should sell appellant one carload of turnings for eight dollars and sixty-five cents per 100 pounds, and twenty-five tons of copper wire, which respondent's son said respondent had for sale, at thirteen dollars and twenty-five cents per 100 pounds, F. O. B. Elmira, usual conditions and terms, the term of credit upon the previous sale, as shown by the complaint and conceded, and as appears from the evidence, having been thirty days. Immediately following this conversation appellant wrote and mailed a letter as follows:
'Mr. W. M. SPIEGEL, Mar. 21, 1912.
'Elmira, N.Y.
Also immediately following said conversation, respondent's son, who, as is indicated by the following letter, had told the respondent by telephone of such conversation, telegraphed the appellant:
to which appellant immediately replied by telegram: In the letter of that day, written to the son, appellant stated that he would consent to the cancellation of the purchase of the carload of brass and bronze turnings, but would not consent to cancel the purchase of the copper wire. On the same day, March twenty-first, respondent wrote appellant:
On March twenty-second respondent wrote appellant:
'I expect a large lot of copper in, but have not got it yet, and when I get it I will let you know.
'I have no fault to find with you, I am pleased with our dealings and am sorry that this happened.'
To this letter appellant replied March twenty-third, insisting upon having the copper wire and saying: 'We note your statement that you expect to receive a large lot of copper, and we see no reason why this contract cannot be filled with that large lot.'
On March twenty-eighth appellant wrote respondent: 'As regards your request for check, beg to state that we cannot do anything further relative to your account, until we know your definite decision in regard to filling your contract obligations which you have with us.'
To this letter respondent replied March twenty-ninth:
Following the refusal of appellant to pay respondent's claim, without allowance being made by respondent on account of the purchase of the copper wire, this action was brought.
As to the authority of respondent's son to make the sale we think the evidence was sufficient to warrant the submission of that question to the jury, and hence we must assume that the jury would have so found, as in reviewing a judgment entered upon the dismissal of a counterclaim, as in reviewing a judgment entered upon a nonsuit, the appellant is entitled to the benefit of every fact which the jury could have found from the evidence, and to all inferences warranted thereby. The respondent is, therefore, upon this appeal to be held chargeable with the acts of his son in connection with the alleged sale. As to the merits of the defense of the Statute of Frauds, it was not the intention of the statute to require that the memorandum should of itself constitute a contract as it was required to be signed...
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