Summary
In Leary v. Moore, 48 Misc. 551, in an action for the price of lumber, it apppeared that, upon the day after an oral order for the lumber was given, a letter was written in which it was stated that the lumber would be furnished for twenty-three dollars and fifty cents per thousand feet.
Summary of this case from Hough v. State of New YorkOpinion
November, 1905.
Jesse W. Johnson, for appellant.
Albert A. Wray, for respondent.
Sometime in February, 1901, the defendant and plaintiff's intestate entered into a contract, whereby the latter sold to the former a quantity of lumber at an agreed price. What that price was is a matter of dispute; defendant claiming that it was twenty-two dollars and fifty cents per 1,000 feet, and plaintiff insisting that it was twenty-three dollars and fifty cents per 1,000. The defendant has paid twenty-two dollars and fifty cents per 1,000 for all the lumber delivered, and the action involves the one dollar per 1,000 which is in dispute. It appears that the parties met on February 5, 1901, at a restaurant, and came to an agreement as to the price to be paid for the lumber; and, on February sixth, the defendant wrote to plaintiff's intestate a letter, referring to the conversation on the preceding day, stating that he understood the latter to say that he would furnish the lumber for twenty-three dollars and fifty cents, and giving certain detailed instructions as to quality, description, time of delivery, etc. The defendant contends, and has apparently contended from the first, that the price of twenty-three dollars and fifty cents was inserted in the letter by inadvertence and that the real agreement was for twenty-two dollars and fifty cents; and, to substantiate this contention, he offered proof as to what took place at the conversation of February fifth, there having been witnesses present other than the two principals. The court below held that the letter of February sixth constituted the contract between the parties; and, as it was in writing, declined to receive evidence of any prior conversation or negotiations which might tend to vary it. The question then is, whether the real contract between the parties was the oral agreement, said to have been arrived at on February fifth, or was the letter written on February sixth. If it was the latter, the ruling below was right. If it was the former, the court erred in excluding the testimony offered. Of course, nothing is more common than for two merchants to arrive at an oral agreement and, subsequently, exchange letters referring to the agreement thus made and confirming it. In such cases, the rule is, that it is the oral agreement which constitutes the contract between the parties, and that the letters are merely evidence of what had been previously agreed upon. In such cases, the parties are not bound by the statement of the terms of the contract as contained in the written confirmatory letters or memoranda; but may show what the real contract was and, in doing so, may contradict or supplement the writings. Brigg v. Hilton, 99 N.Y. 517, 526; Lichtenstein v. Rabolinsky, 75 A.D. 66. In the case under examination, it is certain that some kind of an oral agreement for the sale of the lumber, at a stated price, was arrived at between the parties on February fifth. In his letter of February sixth, defendant writes: "Referring to our conversation yesterday in Davison's I understood you to say that you would furnish me the yellow pine timber * * * for the sum of $23.50 per M. ft.". In a letter from plaintiff's intestate to the defendant, dated February seventh, the writer said: "I wrote my mill man south on the 5th saying I had the order at $23.50 as he has copy of the schedule you gave me last fall"; and, on March twenty-fifth, plaintiff's intestate wrote to defendant: "Within one hour after I accepted your verbal offer of $23.50 per M. ft. for timber to build your Dry Dock on Feb'y 5th * * *". It seems to be quite clear, therefore, that an order was given and accepted on February fifth, the day prior to the date upon which was written the letter which the court below treated as the contract between the parties. Even read by itself, if there had been no other evidence of a prior contract, the letter of February sixth appears, upon its face, to be nothing more than a letter of confirmation. In its first paragraph, it refers to the conversation of the previous day, and expresses the writer's understanding of the purport of that conversation. In its second paragraph, it promises future advices as to the size of the lumber first desired, with an understanding, perhaps intended as a stipulation, as to when shipments should be made. And, in the third and last paragraph, is an offer to furnish a corrected schedule, and a condition as to the quality of the lumber. Nowhere in the letter is to be found any acceptance of any offer, or any agreement to take the lumber, or any clause in any way binding the defendant, its signer; to anything at all. It may be said of it, as was said by the Court of Appeals of a much more explicit memorandum, in Brigg v. Hilton, supra: "It contains no promise nor undertaking. It does not (sell) buy the goods nor does it assume to do so. It was not intended to be a contract * * *. It afforded information by which each of these parties might be guided, and can at the utmost be considered as the recital of things which had been agreed upon, not as an agreement in itself". We are, therefore, of the opinion, that the court below erred in holding, as a matter of law, that the letter of February sixth constituted the contract between the parties, and in excluding all evidence, otherwise competent, as to an oral agreement on February fifth, which the evidence tends to show was the real contract between the parties. The question whether there was such an oral contract and, if so, what its terms were, should have been submitted to the jury. There are many exceptions in the case, but nearly all of them are covered by this opinion. Those not covered, it is not necessary to consider at this time, as we are agreed that the case must be retried.
GILDERSLEEVE and MACLEAN, JJ., concur.
Judgment reversed and new trial granted, with costs to appellant to abide event.