Ward v. Hasbrouck

CourtNew York Court of Appeals
Citation169 N.Y. 407,62 N.E. 434
PartiesWARD v. HASBROUCK et al.
Decision Date14 January 1902
OPINION TEXT STARTS HERE

Appeal from supreme court, appellate division, First department.

Action by Mary M. Ward against Price W. Hasbrouck and another. From a judgment of the appellate division (65 N. Y. Supp. 200) affirming a judgment for plaintiff, defendant Hasbrouck appeals. Affirmed.

Parker, C. J., and Gray, J., dissenting.

John A. Straley, for appellant.

Henry M. Ward, for respondent.

BARTLETT, J.

The plaintiff, Mary M. Ward, seeks to recover, as landlord, of Price W. Hasbrouck and Charles Henry Webb, the rent of certain offices at 165-167 Broadway, in the city of New York. This appeal is from the judgment rendered on a second trial. On the first trial the complaint was dismissed. The judgment entered at the first trial was reversed by the appellate division (60 N. Y. Supp. 391) on the ground that certain letters disclosing the contract relations of the parties were erroneously excluded when offered in evidence by the plaintiff. The negotiations between the parties took the form of a contract whereby the plaintiff was to lease to the defendant Webb the premises in question, and a promise by the defendant Hasbrouck to pay the rent. Referring to this promise, the appellate division, in reversing the first judgment, said: ‘No question is made upon the nature of the promise of Hasbrouck,-whether collateral or original, nor do we determine anything on that point, because it is not material to this appeal.’ The appellate division, in affirming the judgment in plaintiff's favor on the second appeal, after commenting upon the appearance in the present record of the documentary evidence improperly rejected on the first rrial, said: ‘No new question is raised on this appeal, but we are asked to define Hasbrouck's relation to the transaction, as on the former appeal we said that no question was made upon the nature of the promise of Hasbrouck,-whether collateral or original. As the plaintiff has declared upon the promise as a collateral one, has tried the case upon that theory, and upon the argument before us has conceded that it was collateral, for all the purposes of this decision we so regard it.’ Considering the case in this aspect, the appellate division held that there was established a valid collateral contract in writing under the statute of frauds by defendant Hasbrouck, upon which the plaintiff could recover. The statute of frauds was pleaded, to the effect that it was a contract not to be performed within one year from the making thereof; also that it was a promise to answer for the debt, default, or miscarriage of another. The record does not warrant the assumption that plaintiff proceeded entirely upon the theory of the contract being collateral. On the contrary, parol evidence was admitted which tended to establish the precise relations of the parties. We will examine the complaint later to ascertain if it be the fact that plaintiff declared upon a collateral contract. The learned counsel for the respondent has presented this case upon both theories, and we shall so consider it.

If the contract with the defendant Hasbrouck is to be regarded as a collateral undertaking, and within the statute of frauds, all its necessary terms must be contained in the correspondence of the parties read in evidence, without referring to the parol evidence introduced by the plaintiff. The statute provides that every special promise to answer for the debt, default, or miscarriage of another person shall be void, unless such agreement, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged therewith. 2 Birdseye's Rev. St. (2d Ed.) pp. 1342, 1343, § 2. Section 8 of this statute provides that ‘every instrument required by any of the provisions of this title to be subscribed by any party may be subscribed by the lawful agent of such party.’ This court held in Mentz v. Newwitter, 122 N. Y. 491, 25 N. E. 1044,11 L. R. A. 97, 19 Am. St. Rep. 514, that a note or memorandum sufficient to take a contract of sale out of the operation of the statute of frauds must state the whole contract with reasonable certainty, so that the substance thereof may be made to appear from the record itself, without recourse to parol evidence. The court said: ‘Such essentials must appear without the aid of parol proof, either from the memorandum itself, or from a reference therein to some other writing or thing, and such essentials, to make a complete agreement, must consist of the subject-matter of the sale, the terms and the names, or a description of the parties.’ See Benj. Sales (Bennett's Ed.) §§ 234-238; Champion v. Plummer, 1 Bos. & P. (N. R.) 252; Williams v. Lake, 2 El. & El. 349; Williams v. Byrnes, 9 Jur. (N. S.) 363; Potter v. Duffield, 9 Moak, Eng. R. 664; Bailey v. Ogden, 3 Johns. 399, 3 Am. Dec. 509;Clason v. Bailey, 14 Johns. 484;First Baptist Church of Ithaca v. Bigelow, 16 Wend. 28;Calkins v. Falk, 1 Abb. Dec. 291. We are of opinion that the correspondence between these parties, which is the documentary evidence referred to, is insufficient to sustain the plaintiff's cause of action, if based upon the theory of a collateral undertaking, for the reason that without the aid of parol evidence the plaintiff, Mary M. Ward, for whose benefit the promise was made, is not connected with the contract in any way. The parol evidence discloses that the plaintiff was the owner of the premises in question, and that Francis E. Ward, whose name appears as agent for the Parmly Building, in which these offices are located, was the son of the plaintiff, and her agent in business. This fact will more clearly appear when the correspondence is referred to in detail, in considering the question whether the theory of original undertaking can be sustained.

The first question presented under this theory is whether the issues, as framed, permit its consideration. Before examining the allegations of the complaint in this connection, however, it may be well to briefly state the general relations of these parties, as disclosed by the parol evidence. Francis E. Ward was the only witness sworn on the trial, as the defendant Hasbrouck offered no evidence. The defendant Webb failed to answer, and apparently was not served with the summons and complaint, being out of the jurisdiction. Ward testified that he was a son of the plaintiff, and that during the years 1892, 1893, and 1894 she owned the business building known as the ‘Parmly Building,’ 165-167 Broadway, in the city of New York, and that he was her agent for the purpose of renting the building at that time. Ward further stated: ‘I first met the defendant Webb in December, 1892. He called at my office, and asked about the office to rent on the north side of the hallway on the first floor. I first saw the defendant Price W. Hasbrouck a day or a few days later. Mr. Webb brought him into my office and introduced him to me. * * * This interview to which I now refer was about the 7th day of December, 1892; earlier than the tenth. * * * On the second interview, when Mr. Webb and Mr. Hasbrouck were present, Mr. Webb asked me to repeat the proposition that I had made to him, that I would rent the office on a sliding scale,-the proposition which I made at a former interview, that I would rent the office on a sliding scale; and, Mr. Webb having introduced Mr. Hasbrouck to me, I asked Mr. Hasbrouck whether he was interested in the enterprise, and he said he was. I didn't go very much into detail in that interview as to what his interest was, but I asked him whether he was financially responsible, and he replied that he was; and he gave me his card,-his visiting card,-having written upon it the name of Mr. Apgar, the cashier of a Broadway bank. He gave me that card as his reference. He then asked me to write a letter to Charles Henry Webb, who was the man who was to rent the office, the rent of which Mr. Hasbrouck was to guaranty,-to write Mr. Webb a letter stating explicitly the terms on which I would rent the office to him,-and that he (Mr. Hasbrouck) would guaranty the payment of the rent.’ This question was then asked the witness: ‘Q. Was anything said at this interview about your giving them an option to renew the lease after the 1st of May? A. Yes, sir; Mr. Webb said that this enterprise was just starting; that they had contracts that were being considered for the manufacture of these small adding machines; they expected the profits would be very large; the sales would commence immediately; and that the concern would be self-supporting; but as I didn't know as it would be self-supporting, and I represented the landlord, and was not sure of the money, I had asked the additional guaranty from Mr. Hasbrouck of the rent. * * * I agreed to give them an option on the office for three years at $2,500 a year. The option was to be exercised on or before the 1st day of February, 1893.’ Mr. Ward further testified that on the 7th day of December,[169 N.Y. 414]1892, he wrote a letter to Webb in compliance with defendant Hasbrouck's request. This letter bears date on that day, and states: ‘Referring to your conversation this morning, I beg to offer you, if financial reference of your associate be satisfactory, the front office in this building from now until May 1st, 1893, for $625 for the term, payable as follows. [Here follow terms.] Thereafter at $2,500 p. a. Please regard these terms as confidential to yourself and your associate. [Signed] Francis E. Ward.’ In this letter it will be observed that Mr. Ward does not describe himself as agent for the plaintiff or any one else. Mr. Ward further testified that Hasbrouck replied to this letter under date of December 14, 1892, as follows: ‘Herewith find inclosed check for $100 on account of rent of office 167 Broadway to Mr. Charles Henry Webb.’ (Signed by Hasbrouck.) This letter contained a postscript as follows: ‘The future rent can be collected here, at...

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