Boutwell v. O'Keefe

Hogeboom, J. The paroi contract between the parties, for the sale and purchase of the meal, as originally made, was absolutely void by the statute of frauds. But since the case of McKnight v. Dunlop, (1 Seld. 537,) it can no longer be contended that it was incapable of becoming valid and obligatory by subsequent part performance; or that subsequent deliveries of articles,"from time to time, in execution of the contract, are to be regarded as separate and distinct transactions, or as so many separate and independent contracts. The latter would seem to be the rule, as held by the superior court of Mew York, (Seymour v. Davis, 2 Sandf. S. Court Rep. 239; Deming v. Kemp, 4 id. 147;) but it is not the rule in this court, or in the court of appeals. (Sprague v. Blake, 20 Wend. 61. Baker v. Cuyler, 12 Barb. 667. McKnight v. Dunlop, 1 Selden, 537.) Perhaps the conflict between the courts is rather apparent than real, and turns on a question [438] of fact, rather than of law. The superior court holds, as I understand it, that the subsequent transactions or delivery of articles, though of the character and description of those mentioned in the void paroi contract, are not to he presumed to he under or in execution of the original contract, hut, in the absence of explanation, independent transactions. However that may he, it is clear by the rule laid down in the court of appeals, that if the subsequent transactions are not only in apparent conformity to the terms of the original contract, hut in actual execution of it—done under the contract—the contract originally void becomes valid and obligatory upon the parties, and they cannot successfully resist its enforcement. In this case the referee has found, as a matter of fact, that “ the plaintiff went on and delivered meal under the said contract;” and he proceeds to specify the particulars. The contract therefore became thereby valid and operative between the parties. I am not able to discover that it was subsequently broken by the defendants; at least not until after it had been broken by the plaintiff. The plaintiff was undoubtedly entitled to require the guarantied stock and bonds, hut he waived them, and agreed to accept the requisitions instead, and in fact, in the language of the referee, “ desired the defendants to keep the requisitions, and as soon as they could get the stock and bonds, to hand them to him." After that time he never, so far as I can see, recalled this waiver, or demanded the stock and bonds, until the very day and almost at the very moment of commencing this action. At the latter period, he had himself broken the contract, by repeated neglects or refusals to deliver meal when ordered by the defendants. Thus far, the defendants had performed the contract, for they held the requisitions subject to the order of the plaintiff and at his request. They were therefore entitled, in this action, to recoup their damages for the failure of the plaintiff to deliver the meal when ordered. The referee therefore erred in deciding against the defendants on this point; and for this [439] reason, if i, other, a new trial must he awarded. The referee in his conclusions of law has decided that the defendants were guilty of a breach of the contract in failing to furnish the stock and bonds according to the contract, and that this justified the plaintiff in his neglect further to perform. But he has failed to find, as a matter of fact, what is essential to support his conclusion of law, to wit, that the defendants were ever requested to furnish the stock and bonds after the plaintiff had agreed to accept the requisitions in lieu thereof, or that this latter agreement or consent had ever been suspended or withdrawn by the plaintiff. The referee intimates that the plaintiff may have waived the breach qf the contract. It would have been more correct to say that he had in fact waived the furnishing of the stock and bonds. The referee says the waiver was temporary. The fact is, the waiver had never (until just as the suit was about to be commenced,) been recalled. Very probably the requisitions were intended only as a temporary substitute for the stock and bonds, but they remained a valid substitute until the plaintiff chose to terminate that condition of things by a distinct demand of the stock and bonds. This demand was made just as the suit was about to be conpnenced. It was not made sufficiently long before the commencement of the action to enable the defendants to comply with it; and that would have been a good defense to the action, if the defendants had jrat themselves upon that ground at the time. Whether the first breach of the contract by the plaintiff put it out of his power to exact an enforcement of it from the defendants until he had filled the orders of the defendants, or had offered to supply their orders for the future, it is not necessary perhaps to inquire; as there must be a new trial granted for the erroneous disallowance of the defendants’ damages for the plaintiff’s breach of the contract. The judgment entered upon the report of the referee must be reversed, and a new trial granted, with costs to abide the event of the action. [440] [Albany General Term, May 7, 1860. Gould, Hogeboom and Peckham, Justices.] Peckham, J. concurred.