Summary
In Mesibov v. Cohen (245 N.Y. 305) the Court of Appeals said, CARDOZO, Ch. J., writing the opinion (at p. 310): "A signature, however, there must be, and a name, written or printed, is not to be reckoned as a signature unless inserted or adopted with an intent, actual or apparent, to authenticate the writing."
Summary of this case from Dorian Holding T. Corp. v. Brunswick T. R.S. Co.Opinion
Argued May 16, 1927
Decided May 31, 1927
Appeal from the Supreme Court, Appellate Division, First Department.
I. Maurice Wormser and I. Gainsburg for appellant. Samuel Seabury, Nathan Friedman and George Trosk for respondent.
Plaintiff, wishing to purchase 2,000 pounds of tricolette, received from the defendant the following memorandum:
"Acknowledged Date June 28, 1919
"COHEN BROTHERS
"The Leading Sweater House
"16-18-20 West 32nd Street, New York
All contracts subject to strikes, accidents and other unavoidable causes
Sweaters, Fancy Knit Goods
All goods sold and MILLS shipped F.O.B. the Mills.
Cleveland, Ohio Salesman Brooklyn, N Y Philadelphia, Pa. West New York, N.J. Filled by Chg'd by Date
Make for Mesibov, Glinert Levy Ship to 104 W. When 27th St. Via N.Y. City 30 32 34 36 38 Terms Price 40 42 44 46
No.: Style No.: Quantity: 12 14 16 18 20 Ck: Color: 22 24 26 28 9.50 a lb 2000 lbs. Raw Trico Cloth Net 10 days
Delivery Sept and Oct.
No countermands accepted.
"NOTICE. — We hereby agree to accept above order in detail as given and no changes can be made in same unless COHEN BROS. are notified within 10 days from date order is placed.
"To facilitate matters this order will be shipped `As ready for express' unless otherwise specified on order. We do not prepay express charges and make no express charge allowance unless shipment of merchandise is routed contrary to written instructions on this order. No goods will be taken back, unless damaged. We ship no goods on consignment.
"Accepted ....................."
The memorandum was written on a printed order form. The name Cohen Bros. printed in the heading and in the body of the form is that of a partnership to whose business the defendant, Cohen Brothers Manufacturing Co., Inc., had recently succeeded. The plaintiff says that the memorandum was delivered by the defendant with intent to close a contract by the acceptance of an order. The defendant says that it was delivered without contractual intent, and as a memorandum of inquiries to be submitted to the mill. The question is whether the memorandum satisfies the requirements of the Statute of Frauds (Pers. Prop. Law, § 85; Consol. Laws, ch. 41). Criticism is directed to two features of the writing. One is the signature. The other is the description. The two grounds of criticism will be considered in succession.
(1) "The contract," or "some note or memorandum" thereof, shall be "signed by the party to be charged or his agent in that behalf" (Pers. Prop. Law, § 85, subd. 1). There is no longer a requirement that the writing be "subscribed" ( James v. Patten, 6 N.Y. 9). It may be signed at any place, at the top or in the body. A signature, however, there must be, and a name, written or printed, is not to be reckoned as a signature unless inserted or adopted with an intent, actual or apparent, to authenticate the writing (1 Williston, Sales, § 112; Anson, Contracts [Corbin's ed.], p. 106; Benjamin on Sales [6th ed.], p. 308; Browne, Statute of Frauds, § 357). Whether such an intent is to be inferred will be at times a question of law and at others one of fact, according to the circumstances. Thus, a signature is adequate if the party to be charged writes the letters "O.K." in the margin or at the top and adds thereto his name either in full or by initials. A signature is adequate if a letter is written in the third person: "Mr. Stanley begs to inform [the plaintiffs] that he will take an early opportunity of settling their accounts" ( Lobb v. Stanley, 1844, 5 Q.B. [Ad. Ellis N.S.] 574). The same result has been reached in other cases where intention was more dubious (Benjamin, supra, p. 306). The decisions are conflicting whether the name of a seller in the printed heading of a billhead or an order blank is a signing without more. Such a signing was held adequate in Cohen v. Wolgel ( 107 Misc. Rep. 505; 191 App. Div. 883); in Pearlberg v. Levisohn ( 112 Misc. Rep. 95), and in Drury v. Young ( 58 Md. 546), but inadequate in Lee v. Vaughan's Seed Store ( 101 Ark. 68), and in Sutherland v. Munsey ( 119 Va. 791).
We assume for present purposes that a printed name in such a heading will be treated as a signature if the setting of the occasion gives fair warrant for the inference that it was so intended or adopted. The assumption does not carry us far toward the solution of our problem. The difficulty here is that the imputation of such a meaning to the parties now before us is overcome by tokens of intention too strong to be resisted. Beneath the printed heading is the buyer's order for the goods. Beneath the order is a form wherein the seller accepts the order according to its terms. Beneath this is the printed word "accepted" with a dotted line intended for the signature of the seller, the acceptor. The name was never added.
A memorandum so phrased leaves no basis for the inference, in the absence at all events of other evidence of intention, that the printed heading was adopted as a recognition of the contract. The form shows upon its face that the seller was unwilling to accredit the contract as its own without another signature, separate from the heading, to be placed as a token of validity in a space specially reserved. Even in the English courts, where the rule, it seems, is laxer than with us (Williston, supra, § 112), a signature thus disowned would not satisfy the statute. Thus, in Hubert v. Treherne (3 M. G. 743) the names of the parties were written in the body of the document, but at the end were the words "as witness our hands," without other authentication. "These words evidently shew that the names of the contracting parties were meant to be subscribed, and that it was not intended that the insertion of the names in the body of the instrument should operate by way of signature" (per TINDAL, C.J., at p. 754; cf. Hucklesby v. Hook, 82 L.T. 117, and cases there cited; Benjamin on Sales, supra). We may, indeed, infer from the delivery of the writing that the defendant intended to assume the obligation of a contract, whether the document was signed or unsigned. It might have intended as much if there had been no writing whatever. It may even have supposed that a writing was unnecessary. Something more must be found before the statutory requirements can be held to be obeyed. The defendant must have intended not merely to contract, but to sign. We see no mark of such a purpose.
The conclusion thus reached is reinforced by other circumstances, if reinforcement be important. The name used in the order blank is not the defendant's name at all. It is the name of a partnership to which the defendant has succeeded. We do not mean that this circumstance, standing alone, would be decisive. If the writing had been signed at the appropriate place, the inference might be permissible that the name had been adopted for the occasion as an informal or abbreviated description of the corporation, just as if the corporation had been designated by the use of its initials. The partnership was no longer in existence, and there is no pretense that the defendant's officers were contracting in behalf of a firm that was extinct. Even so, the use of such a form puts a new strain upon the argument that the heading was adopted as equivalent to a signature. The inference must rather be that the blanks were made use of as a convenient scratch-pad, without thought that they contained a signature, or that signature was necessary.
(2) We pass to a second objection to the note or memorandum. The one already considered is sufficient to sustain the judgment. The second, however, was chosen by the Appellate Division as the basis of its opinion, in misconception, we think, of the effect of our decisions. Our silence might tend to perpetuate the error.
The memorandum is said to be inadequate in its description of the goods that are to be the subject of the contract. Trico cloth, or more properly tricolette, comes in varying widths and weights. The memorandum does not state the widths and weights to be delivered. There might be force in this criticism if the omission were not supplied by the usage of the market. Evidence is in the record that there are standard widths and weights which will be taken to be those intended when the writing is silent as to the delivery of others. A witness for the defendant admits that this is true of widths, though he qualifies his earlier testimony by denying that it is true of weights. On the other hand, there are witnesses for the plaintiff who tell us that it is true of widths and weights alike. If this is so, the goods have been "sufficiently described for reasonable identification" (1 Williston, Sales, § 105-b, p. 198). The memorandum was for the use of merchants. The meaning that the description would have conveyed to them, when they came to read what had been written in the light of the usage of their business, is the meaning to be ascribed to it when scrutinized by courts ( Gumbinsky Bros. Co. v. Smalley, 203 App. Div. 661; 235 N.Y. 619; Nicoll v. Pittsvein Coal Co., 269 Fed. Rep. 968). The statute does not abrogate the settled canons of construction that apply to contracts generally ( Marks v. Cowdin, 226 N.Y. 138, 144; Argus Co. v. Mayor, 55 N.Y. 495, 504; Williston, Sales, § 104, and cases there cited).
Stress is laid by the defendant upon a statement by the plaintiff's agent in the talk that led up to the written memorandum. He said in entering the defendant's office that he wished to buy some more of the same quality of tricolette that had been supplied to him before. The argument is made that the memorandum is an incomplete record of the true agreement between the parties in that it fails to identify the subject-matter of the new deliveries with the subject-matter of the old ones (1 Williston, Sales, § 104). We do not overlook the difference in this connection between a contract in writing, and a note or memorandum of a contract. The one is subject to the parol evidence rule; the other may be shown by parol to be inaccurate or incomplete (Williston, supra, § 100; Benjamin on Sales [6th ed.], pp. 264, 267, and cases there cited; Juilliard v. Trokie, 139 App. Div. 530, 533; 203 N.Y. 604; Mandel v. Guardian Holding Co., Inc., 200 App. Div. 767, 769, 770; 234 N.Y. 564). But the goods previously supplied were goods of standard widths and weights. The memorandum did not introduce a variance from the conditions of the order. It put in other words the same thought that would have been expressed if it had identified the new sales by reference to the old ones. A different question would be here if some particular form of expression had been bargained for in advance as an essential term of the agreement. Nothing in the situation justifies an inference that such a bargain was intended. What was said by the plaintiff's agent was merely introductory and preliminary. Indeed, the defendant's argument, if accepted, would lead to the conclusion that the memorandum would be inadequate though it had expressly enumerated the widths and weights to be delivered unless it joined to this a statement that widths and weights were to be identical with those supplied before. Neither reason nor authority constrains to such a ruling. A memorandum expressing the sense of the preliminary agreement is not to be condemned as inadequate for a failure to reproduce the words, unless reproduction of the words was a condition of the bargain. Nothing to the contrary was held in Berman Stores Co. v. Hirsh ( 240 N.Y. 209). There the parties had agreed upon a determinate date for the delivery of goods. The memorandum was silent as to this branch of the agreement with the result that delivery might have been made within the flexible and fluctuating limits of a reasonable time (cf. Williston, supra, § 104, p. 190). What was written was not fairly the equivalent of what was said. Here equivalence is made out by the usage of the business as soon as usage is established. Equivalence existing, the parties were not insistent that the expression should be in one form to the exclusion of another.
We conclude that the first objection to the writing must be upheld and the second overruled.
The judgment should be affirmed with costs.
POUND, CRANE, ANDREWS, LEHMAN, KELLOGG and O'BRIEN, JJ., concur.
Judgment affirmed, etc.