Van Boskerck v. Torbert

• Decision Date: 09 January 1911
• Docket Number: 103.
• Citation: 184 F. 419
• Parties: VAN BOSKERCK et al. v. TORBERT.
• Court: U.S. Court of Appeals — Second Circuit

184 F. 419

VAN BOSKERCK et al. v. TORBERT.

No. 103.

United States Court of Appeals, Second Circuit.

January 9, 1911

Tyler &amp Tyler (William S. Tyler, of counsel), for plaintiffs in error.

M. S Lynch, for defendant in error.

Before LACOMBE, COXE, and WARD, Circuit Judges.

WARD Circuit Judge.

The complaint sets up seven separate and independent purchases on different dates of flour by the plaintiff from the defendants for future delivery aggregating 6,250 barrels, all of which were at the price of $3.75 per barrel except the last of April 30, 1907, which was at $3.90 per barrel:

October 29, 1906 1,250 bbls. at $3.75 per bbl.

November 7, 1906 750 bbls. at 3.75 per bbl.

November 13, 1906 250 bbls. at 3.75 per bbl.

November 15, 1906 1,000 bbls. at 3.75 per bbl.

November 26, 1906 500 bbls. at 3.75 per bbl.

December 26, 1906 1,500 bbls. at 3.75 per bbl.

April 30, 1907 1,000 bbls. at 3.90 per bbl.

It is admitted that the defendants delivered only 3,500 barrels, as follows:

November 16, 1906, 250 barrels.

December 7, 1906, 250 barrels.

December 21, 1906, 250 barrels.

January 11, 1907, 250 barrels.

February 2, 1907, 250 barrels.

February 16, 1907, 250 barrels.

March 12, 1907, 250 barrels.

March 19, 1907, 250 barrels.

March 25, 1907, 250 barrels.

April 13, 1907, 250 barrels.

May 6 1907, 250 barrels.

June 22, 1907, 250 barrels.

June 28, 1907, 250 barrels.

July 2, 1907, 250 barrels.

The jury gave the plaintiff a verdict for the damages resulting from the failure to deliver 2,750 barrels. The contest in this court is as to the alleged sales of 1,000 barrels November 15 and 1,500 barrels December 26, 1906; the defendants denying that any such contracts were made and contending that, if made, they are void because not evidenced by a memorandum in writing as required by the statute of frauds, the relevant provisions of which are as follows (section 31 of the personal property law (Consol. Laws, c. 41)):

'Agreements required to be in writing. Every agreement, promise or undertaking is void unless it or some note or memorandum thereof be in writing and subscribed by the party to be charged therewith or by his lawful agent, if such agreement, promise or undertaking * * * (6) is a contract for the sale of any goods, chattels or things in action for the price of fifty dollars or more, and the buyer does not accept and receive part of such goods, or the evidences, or some of them, of such things in action; nor at the time, pay any part of the purchase money.'

The plaintiff testified that, not having received any written confirmation of the sale of November 15th, of 1,000 barrels, at $3.75, he complained to Thomas Van Boskerck, who replied that he had mailed the usual confirmation. It is contended that the case should be treated as if this had been done and the letter had miscarried. The contents of a written memorandum of sale which has been lost, required by the statute of frauds, may be proved by parol testimony. Reed on Statute of Frauds, Sec. 326; Jackson v. Livingston, 7 Wend. (N.Y.) 136. This testimony, which must have been believed by the jury, seems to us sufficiently to establish the memorandum.

The plaintiff further testified that he bought 1,500 barrels December 26th, for which he received no written confirmation, and that on or about January 10, 1907, he asked Thomas Van Boskerck, one of the defendants, for a statement of the amount of flour due him, who turned to his books and wrote off the following:

October 29, 1,750 sacks. November 7, 1,250 " November 13, 350 " November 15, 1,400 " November 26, 700 " December 26, 2,100 " ------ 7,550 " 5 ------ 7) 37,750 ------ 5,390 1,250 ------ 3,140

This memorandum is of sacks (of the same quantity) instead of barrels, and contains a mistake in subtraction; but its importance is that it recognizes the sales alleged by the plaintiff to have been made November 15th and December 26th. That in view of it the jury found such contracts had been made is not to be wondered at. The plaintiff contends that this memorandum satisfies the statute of frauds; but this is clearly not so, because it does not pretend to state a contract and is not signed. Next he says it is to be regarded as an account stated; but, if there can be an account stated of a balance of goods, it is a sufficient answer that the complaint is not upon an...