Newberry v. . Wall

Earl, J. The plaintiffs sued the defendants in 1870, to recover the price of the Dowrah jute now in question. The defendants defended that action upon the ground that the contract of sale was invalid under the statute of frauds, and also upon the ground that the jute was not of the quality required by the alleged contract. The plaintiffs were nonsuited, and then appealed to the General Term and the Commission of Appeals, and the judgment of nonsuit was sustained upon both grounds. (35 Super. Ct. 106; 65 N. Y. 484.) The plaintiffs then commenced this action and the defendants again defended upon the same grounds, and the plaintiffs were again nonsuited upon the ground that the contract of sale was invalid under the statute of frauds; and upon that ground the judgment of nonsuit was sustained upon appeal by the plaintiffs to the General Term. On the last trial there was evidence tending to show that the jute was of the quality required by the alleged contract, and hence, if there was a valid contract, the plaintiffs were improperly nonsuited. The sole question, therefore, for our consideration is whether there was a valid contract, or evidence tending to show there was, which should have been submitted to the jury. *580 In the prior case the Commission of Appeals impliedly decided that if the broker’s note of the sale had been delivered to the defendants as well as to the plaintiffs, there would have been a valid contract of sale within the statute of frauds, and such is the law (Merritt v. Clason, 12 Johns. 102; 14 id. 484; Butler v. Thomson, 92 U. S. 412); and so the learned counsel for the plaintiffs conceded it to be on the argument before us. It was held in the prior case that there was not 'sufficient evidence that the broker’s note was delivered to the defendants, and so the trial judge held in this case in non-suiting the plaintiffs. We have carefully compared the evidence given upon this trial with that given upon the former trial, and so far as it bears upon the delivery of the broker’s note, it is not precisely the same. The difference is not great or marked, but sufficient to call for a different, disposition of the case. There was no evidence that the broker’s note was not delivered to the defendants and the evidence did not show certainly that it was so delivered, but we do not see how it can well be doubted that there was evidence sufficient for submission to the jury upon the question of such delivery, and we will briefly call attention to it. In May, 1870, the plaintiffs had notice of the shipment to them of the jute from London, and they employed the broker to sell it. He called upon the defendants and offered it to them, and they made an offer for it which he communicated to the plaintiffs and they accepted it, and then he informed the defendants of the acceptance and they replied that it was 'all right. He then entered the contract of sale in his book, and made two copies thereof, signed by him, and sent one copy, called the broker’s note, to the plaintiffs which they received, and he sent the other copy to the defendants, and as stated above, there is no positive or direct evidence that they received that. He sent it in the usual course of his business by one of his clerks,.a boy fifteen or sixteen years old. The boy was not sworn, and at the time of the trial was probably dead. From the fact that it was thus sent there is a-strong probability that it reached the defendants, particularly as *581 neither of them was called, as a witness to deny that they received it. While the mere fact that it was thus sent was not sufficient evidence that they received it, but little additional evidence was needed to authorize a jury to infer that it did reach them. This was on the 25th day of May. The broker testified that subsequently he had a conversation with one of the defendants as to his purchase of the jute, and informed him that he had executed the broker’s note. The jute arrived in the latter part of July, and the plaintiffs then notified the defendants of its arrival, and called upon them for the gold to pay the duties. The defendants, instead of paying the gold, as required by the contract, requested the plaintiffs to enter the goods at the custom house in bond, which they did; and then they delivered to the defendants an order on the vessel for the jute, and sent them an account specifying the quantity of jute in bales and pounds, and debiting them for the purchase-price thereof, to which the defendants made no objection. The defendants then made an arrangement with warehousemen to store the jute, informing them that they had bought it, and after the warehousemen had commenced carting the jute, the defendants informed them that they had seen the jute, did not think it was such as they had bought, thought they should reject it, and told them not to store it on their account. The warehousemen, notwithstanding this, stored the jute on account of whom it might concern. A few days later the defendants informed the warehousemen that they had concluded positively to reject the jute, and they then addressed a letter to the plaintiffs, in which they stated as follows: “ On examination of the 1,000 bales of jute we bought of you we. find the whole to be in most respects different from any usually imported under that name. The quality is so inferior that it is not fit for manufacturing purposes, totally unsalable and unmerchantable, and hence we regret to inform you that we reject it and give up the purchase.” The defendants were business men, and must be presumed to have known what was essential to a valid contract, and all their conduct indicates that they supposed they had made a *582 valid contract.- They were informed that the broker had exe cnted the broker’s note; they subsequently admitted that they had bought the jute; they accepted an order for its delivery, and dealt with it as if they had bought it and had the right to control it. They finally rejected. it, not on the ground that they had not made a valid contract for its purchase, but upon the sole ground that it was not such jute as they had the right to demand under their contract. . Upon all these facts it seems to us quite clear that there was evidence sufficient to authorize the inference by the jury that they had received the broker’s note sent to them, and thereby considered themselves under a valid contract. The judge presiding at the trial therefore erred in nonsuiting the plaintiffs. The plaintiffs also claim that there was evidence tending to show such a delivery and acceptance of the jute, or a. portion of it, as to satisfy the statute of frauds; but we have not considered this claim, and make no determination now as to it. For the error mentioned, the judgment should be reversed and a new trial granted, costs to abide event. All concur, except Folg-eb, Oh. J., who being in doubt did not vote; Rapallo, J., absent. ' Judgment reversed.