Opinion
December 8, 1970
Order and judgment (one paper), Supreme Court, New York County, entered on July 10, 1970, denying plaintiff's motion for summary judgment and granting summary judgment to defendant, modified, on the law, to the extent of denying summary judgment to defendant, and otherwise affirmed, without costs and without disbursements. In this action to recover a fee for services rendered as a business broker, plaintiff relies upon a suggested letter-agreement and the covering letter which accompanies same. The letter was signed by defendant's vice-president, but the suggested agreement was not. These documents were sent to plaintiff in the course of negotiations concerning his desired fee, which negotiations apparently continued even after plaintiff's receipt of the documents and his execution of the suggested agreement. The letter, in its entirety, states as follows:
"Dear Herb:
Attached is a suggested letter agreement in duplicate. If satisfactory, please sign both copies and return. I will then sign and return your copy.
Sincerely, (signed) George George G. Stier"
The suggested letter agreement concluded as follows: "Please sign and return the attached copy for our files.
Very truly yours, (unsigned) George G. Stier Vice President Accepted .............................. Herbert Buschman .............................. George G. Steir"
That agreement was not signed in either place by Stier. The majority of this court is of the opinion that, whether or not the parties intended to be bound prior to the formal execution of the suggested letter-agreement by both parties, presents a triable issue of fact. It is settled law that "If the parties intend not to be bound until a written memorial is executed by each, then they are not bound until that event takes place". ( Smith v. Onyx Oil Chem. Co., 218 F.2d 104, 108.) The Court of Appeals, in Scheck v. Francis ( 26 N.Y.2d 466, 469-470) recently stated the rule as follows: "It is well settled that, if the parties to an agreement do not intend it to be binding upon them until it is reduced to writing and signed by both of them, they are not bound and may not be held liable until it has been written out and signed. [Citing cases.]" A further issue of fact presented is whether Stier had the requisite authority to conclude an agreement respecting plaintiff's fee so as to bind defendant corporation.
I would affirm. The "suggested letter agreement" (note, the word "suggested") transmitted to plaintiff by Stier's letter of May 8, 1968, was the writing which would constitute an agreement complying with the Statute of Frauds, and this was not signed by defendant. The signing by Stier of the transmittal letter was not a compliance with the statute. (See Scheck v. Francis, 26 N.Y.2d 466, affd. 33 A.D.2d 91.) This letter of transmittal may not be properly held to be an offer from defendant to the plaintiff; rather it is in the nature of an invitation to plaintiff to submit an offer in writing which plaintiff did and which defendant rejected. The promise of the defendant to sign was a mere executory promise without consideration. The condition was that there would be an agreement when the defendant signed. The determination of the majority which amount in effect to a remanding for the taking of parol evidence defeats the purpose of the statute, i.e., to protect transactions of this nature from fraud and perjury by immunizing them from parol evidence. (See Dorian Holding Trading Corp. v. Brunswick Term. Ry. Securities Co., 230 App. Div. 514, affd. 256 N.Y. 674.) "It is settled law that a memorandum sufficient to satisfy the Statute of Frauds must in itself or by reference to other writings be complete, so that the full intention of the parties can be ascertained from it alone without recourse to parol evidence." ( Matter of Levin, 276 App. Div. 739, 742, 277 App. Div. 758, affd. 302 N.Y. 535.)