Opinion
Argued June 20, 1928
Decided July 19, 1928
Appeal from the Supreme Court, Appellate Division, Second Department.
Louis H. Moos for appellants.
Samuel Zirn for respondents.
Plaintiffs sued for the breach of an oral contract for the sale of two barge loads of hay valued at more than $9,000 and have recovered upon the theory that a letter signed by defendants constitutes such a note or memorandum as makes the contract enforcible under the Statute of Frauds. (Pers. Prop. Law [Cons. Laws, ch. 41], § 85.) Plaintiffs' evidence points to an unconditional and absolute oral agreement. Defendants' letter expressly states that the sale is made "subject to our ability of securing insurance on these barges." This is not a memorandum of the oral agreement proved by plaintiff. It is evidence of an entirely different agreement and is not such as the statute requires. ( Ward v. Hasbrouck, 169 N.Y. 407; Brauer v. Oceanic Steam Navigation Co., 178 N.Y. 339; Poel v. Brunswick-Balke-Collender Co., 216 N.Y. 310; N.E.D. Holding Co. v. McKinley, 246 N.Y. 40.)
The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts.
CARDOZO, Ch. J., POUND, ANDREWS, LEHMAN, KELLOGG and O'BRIEN, JJ., concur; CRANE, J., not sitting.
Judgments reversed, etc.