Weatherproof Imp. Contracting Corp. v. Kramer

• Decision Date: 03 May 1956
• Citation: 12 Misc.2d 100,172 N.Y.S.2d 688
• Parties: WEATHERPROOF IMPROVEMENT CONTRACTING CORP., Plaintiff, v. Thomas KRAMER, Defendant.
• Court: New York City Municipal Court

Page 688

172 N.Y.S.2d 688

12 Misc.2d 100

WEATHERPROOF IMPROVEMENT CONTRACTING CORP., Plaintiff, v. Thomas KRAMER, Defendant.

Municipal Court of City of New York, Borough of Bronx, First District.

May 3, 1956.

Lewis Steinfeld, New York City, for plaintiff.

Aronowitz, Weisberg & Kalvin, New York City, for defendant.

ARTHUR WACHTEL, Justice.

This is an action to recover the sum of $600 as liquidated damages for alleged breach of contract.

Plaintiff is a general contractor in the business of modernization of home property. Mr. Tambor, President of Plaintiff, and Eva Becker, now its Secretary, then its bookkeeper and canvasser, obtained orders for home repairs after making a survey of an area and then soliciting business from home owners found to be in need for such repair. They maintained an office for such purpose and had the orders so solicited taken care of by plaintiff's 'supplier,' the Florence Corporation, which furnished the materials.

On May 12, 1955, Tambor and Mrs. Becker interviewed defendant and he signed a contract for $2,000 for labor and materials in connection with shingle and roofing, and gave Tambor a check for a deposit of $730.

Defendant contends that he was advised by Tambor he could cancel the contract if he was not satisfied; that he did call Tambor's office that afternoon and left word he was discontinuing the contract, and he stopped the check on May 15, 1955.

Plaintiff relies on the printed conditions on the back of the contract which provide that the contract 'when signed by the home owner is an irrevocable offer and must be accepted or rejected by Weatherproof Improvement and Contracting Corp., the right to accept or reject being specifically reserved in Weatherproof Improvement and Contracting Corp. only. This agreement becomes effective and binding upon Weatherproof Improvement and Contracting Corp. only when accepted by Weatherproof Improvement and Contracting Corp.'

Plaintiff contends he did accept contract the same night contract was signed, and that he forwarded a letter of acceptance. He did not, however, produce any copy of such letter, and the defendant disputed ever having received such letter. Defendant relies upon Section 33, Subdiv. 5 of the Personal Property Law which provides as follows:

'When hereafter an offer to enter into a contract is made in a writing signed by the offeror, or by his agent, which states that the offer is irrevocable during a period set forth or until a time fixed, the offer shall not be revocable during such period or until such time because of the absence of consideration for the assurance of irrevocability. When such a writing states that the offer is irrevocable but does not state any period or time of irrevocability, it shall be construed to state that the offer is irrevocable for a reasonable time.'

In accordance with this provision, the defendant claims that inasmuch as the contract does not state any period of time of irrevocability, it shall be construed to state that the offer is irrevocable for a reasonable time only, and that the plaintiff has done nothing up to the present time to accept the offer, and that more than a reasonable time has elapsed. However, there was clearly an acceptance of the contract inasmuch as the same was signed by Mr. Tambor as 'salesman' of Westherproof Improvement and Contracting Corp. (Plaintiff's Exhibit 1 in Evidence), and the evidence supports the inference that Mr. Tambor's authority included acceptance of the contract.

This leaves for consideration the question as to whether there was an agreement, as claimed by the defendant whereby the defendant had the right to cancel the contract. This is disputed by the plaintiff. The contract provides in the conditions set forth on the back:

'The Home Owner(s) and/or co-signer(s) certified that he has (they have) read each and every part of this contract and that this contract constitutes the entire agreement between Weatherproof Improvement and Contracting Corp. and the undersigned Home Owner(s) and/or co-signer(s) and no agreements, promises or warranties except those herein expressly set forth, have been made by Weatherproof Improvement and Contracting Corp. or its salesman to the undersigned Home Owner(s) and/or co-signor(s) and no modifications thereof shall be claimed by the undersigned Home Owner(s) and/or co-signer(s).'

An oral agreement that the contract is cancellable would contradict the terms of the contract providing for the irrevocability of the offer, and hence, is inadmissible under the parol evidence rule (Mitchill v. Lath, 247 N.Y. 377, 160 N.E. 646, 68 A.L.R. 239; Halloran v. N. & C. Contracting Co., 249 N.Y. 381, 164 N.E. 324; Ball v. Grady, 267 N.Y. 470, 196 N.E. 402; Krueger, Inc., v. Hearn Department Stores, 265 App.Div. 791, 40 N.Y.S.2d 923).

This brings us to the question as to damages. Plaintiff relies upon the provision of the contract which provides as follows:

'The owner(s) and/or co-signer(s) agrees that in the event of any breach of this contract by him (them), at any time, before or after acceptance thereof, Weatherproof Improvement and Contracting Corp. may, at its option, collect 30% of the total consideration herein named as liquidated damages for the breach of said contract, or sue at law for such damages as Weatherproof Improvement and Contracting Corp. may establish. Home Owner waiver right to trial by jury.'

The rule is that the amount set forth as liquidated damages must be reasonable and not disproportionate to the probable damages, and must have been based on the principle of just...