
    Morton P. Hutchison, Respondent, v. Frank Walter, Appellant.
    (Supreme Court, Appellate Term,
    February, 1896.)
    1. Statute of frauds :—Contract of sale—: Unsigned -memorandum.
    An unsigned memorandum in relation to a sale of-personal property7 .Is insufficient to meet the requirements of the Statute of Frauds.
    
      3. Same.
    A writing which refers to an unsigned, memorandum, but suggests 'the-substitution of a different' subject matter, and inquires if it was wanted,' is not sufficient to make out a valid contract of sale under the statute.
    Appeal by defendant from judgment of the Second Judicial District Court, -1 . . •
    E. T. Payne, for appellant.
    A. A. MeGrlashan, for respondent.
   McAdam, J.

. The action was to recover .damages for failure to deliver 10,000 potato bags at the agreed price of five and oner fourth cents per bag, and for special damages incurred by plaintiff .with defendant’s knowledge in consequence ' of the- breach-. The defense-was that, as the' priee exceeded $50, and none .of the provisions of the Statute of Frauds (2 R. S, 136) was complied with, there .was no valid contract, and hence no cause of- action.

If appears that, on July 24,. 1895, plaintiff-called at defendant’s place of business and interviewed defendant’s representative,..Mri Vetter, regarding the purchase, of some potato, bags, and offered to buy 10,000, at five and one-fourth cents a bag. He was told to call next, day and receive his answer; he did -so, ¡and. an agreement was entered into between plaintiff and defendant, that plaintiff Would'buy and defendant would sell 10,000 blue-etripe potato bags, at five and oné-fourth cents a bag; defendant to notify plaintiff when bags were -ready for shipment, and receive from plaintiff shipping directions. . -

The plaintiff sought to meet the requirements of the statute by offering in evidence certain writings which will be referred to in their order. .

On July 26, plaintiff wrote to defendant as follows:

“ Hew York,. July .26, 1895.- -
“F; "W¿Iter, Esq.,
“Dear. Sir:
■ “ Please notify me by mail when you are ready to have raJe réceive the 10 .H potato bags hought .of you July 25th, at 5i.
“ M. P. Hutchison.”

On the following day this letter was returned to plaintiff with a pencil memorandum written at the bottom, not signed, in these words: “ The bags shown you had blue stripe, and on going over our stock we - find we have only red-stripe bags. These are precisely alike, except stripe; will this be satisfactory? If so, kindly give the shipping instructions. ’’ Later on the same day another memorandum was left on plaintiff’s desk by defendant’s agent. This memorandum was subscribed, referred to the unsigned memorandum of the morning, and was as follows:

We left a memo, on desk this a. m. This stated that we had only red-striped bags on hand. (When we opened the bales which we thought contained blue bags, it was discovered that they were red bags.) A -party wants these bags, and we told them that they may have them if you do not want them. Kindly let us know at once, as other party are waiting for answer, and oblige, ,

"Frank Walter,
“W. J. V.
" Mr. M. P. Hutchison.”

The memorandum written at the end of plaintiff’s letter is insufficient to meet the requirements of the statute, and does not bind the defendant on the contract. The statute requires the note or memorandum of the contract to be subscribed by the party to be charged therewith. 2 R. S. 136, § 3; James v. Patten, 6 N. Y. 9; McGivern v. Fleming, 12 Daly, 289; Coe v. Tough, 116 N. Y. 273, 277.

The signed writing sent by defendant to plaintiff does not bind him, for it is in no sense a contract or a memorándum of a contract. The alleged contract was for 10,000 blue-stripe bags; defendant’s memoranda speak of red-stripe bags (a different subject-matter), of which the defendant 'had only 8,'000, and these the plaintiff refused to accept. Hence, there is nothing in the signed memoranda which aids the previous writings.

There being no valid contract, the defendant was not liable to plaintiff, and the judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Daly, P. J., and Bischoff, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event. ----------------"  