Spiegel v. Lowenstein

Decision Date06 May 1914
Citation147 N.Y.S. 655,162 A.D. 443
PartiesWOLFE M. SPIEGEL, Respondent, v. BENJAMIN LOWENSTEIN, Appellant.
CourtNew 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.

COUNSEL

Frankenthaler & Kaufmann [E. W. Personius and Alfred Frankenthaler of counsel], for the appellant.

Lewis E. Mosher, for the respondent.

OPINION

LYON J.:

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.

'DEAR SIR: Confirming long distance telephone conversation which the writer had with Mr. Spiegel, Jr., we herewith beg to confirm purchase from you of 25 tons clean heavy copper wire at 131/4 c. per lb.,--also one carload containing the usual quality of # 1 yellow brass turnings and bronze turnings at $8.65 per 100 lbs. F. O. B. cars Elmira, prompt shipment, usual terms. Please ship the carload of copper consigned to the Tottenville Copper Co., Tottenville, S. I., N.Y. , sending invoice and other particulars as usual, direct to this office. Please ship the carload of turnings routed to New York City via Erie as usual.'

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:

'Cancel order for turnings and copper wire as same has been disposed of by my father.
'M. F. SPIEGEL.'

to which appellant immediately replied by telegram: 'Cannot comply with your request. Have written.' 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:

'When I arrived home at 6.50 P. M., my boy who is about eighteen years old told me that you called him up by telephone and he made you a price on brass turnings and copper wire. Now you know how youngsters are, they do not consider things when they speak. He knew well when he spoke to you that I had not purchased the turnings, but went down to see about getting them, but did not get them. Somebody else got them this time. After my boy spoke to you he called me up by telephone and told me about it and I told him to telegraph you at once to cancel this order and explanation would follow. I assure you if I had got the turnings you would get them, no matter how cheap he had sold them to you, but I did not get them, therefore I cannot send you what I have not got.'

On March twenty-second respondent wrote appellant: 'I received your letter and note what you state regarding the copper and also the brass turnings. I have written you yesterday to the fact. When I asked you about prices for brass turnings on the 20th, I was notified by my parties that they were ready to dispose of the lot of turnings and to be sure that I would give them the right price and not lose the purchase I asked you for price so that I could base my quotation according to your price.

'I was called out of the city yesterday the 21st, and did not leave any authority to any one to sell anything or give any prices to any one for any stock. I never thought or dreamt that a youngster would think of any such a thing as to stand at the telephone and make prices and sell goods which I have not got.

'When I asked my son about it and gave him a calling down he said he was just having fun, but I do not feel that way. I will ask you the next time if you want to speak to me do not speak to any one else. I also gave the telephone operator a calling down for allowing my boy to speak instead of myself. They have had such orders before but she stated to me that she told you I was out of the city and you said any one will do.

'You know how youngsters of eighteen are. They think they know everything but they don't know nothing, therefore I will ask that you will have no hard feelings on this account.

'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: 'Your letter of March 28th to hand and note what you say in regards if I will fill the order which you have with me. You have no order with me.

'All orders which you had with me were filled. I have written you a letter and explained in regards to some transaction which you had with a boy of eighteen, Milton F. Spiegel. The telegram was signed by Milton F. Spiegel and he done business with you which I did not know anything about.

'If you have any claim collect it from M. F. Spiegel. You cannot find any acknowledgment or acceptance from me.'

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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8 cases
  • Crabtree v. Elizabeth Arden Sales Corp.
    • United States
    • New York Court of Appeals
    • 21 Enero 1953
    ...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.......
  • Franklin Research & Develop. Corp. v. Swift Elec. Sup. Co.
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    • 10 Enero 1964
    ...Arden Sales Corp., 305 N.Y. 48, 110 N.E.2d 551 (1953); Marks v. Cowdin, 226 N.Y. 138, 123 N.E. 139 (1919); Spiegel v. Lowenstein, 162 App.Div. 443, 147 N.Y.S. 655 (1914); Apollo Steel Company v. C. H. Brushaber & Co., Inc., 210 App.Div. 402, 206 N.Y.S. 301 (1924). It is also well settled th......
  • Bevercombe v. Denney & Co.
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    • United States State Supreme Court of Idaho
    • 6 Diciembre 1924
    ...... specially pleaded. (Abraham v. Durward, 46 N.D. 611,. 180 N.W. 783; Pearlberg v. Levisohn, 112 Misc. 95,. 182 N.Y.S. 615; Spiegel v. Lowenstein, 162 A.D. 443, 147. N.Y.S. 655.). . . WM. E. LEE, J. McCarthy, C. J., and William A. Lee, J., concur. . . . ......
  • N. Dorman & Co. v. Noon Hour Food Products, Inc., 79 Civ. 933.
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    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
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    ...that cancellations of orders previously made were sufficient to satisfy the statute of frauds. For example, in Spiegel v. Lowenstein, 162 A.D. 443, 147 N.Y.S. 655 (3d Dept. 1914), the New York court found that a telegram stating "cancel order for turnings and copper wire as same has been di......
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