
    Oscar S. Flash, Appellant, v. Edward V. W. Rossiter and John Carstensen, Respondents, Impleaded with Chauncey M. Depew and Others, Defendants.
    Second Department,
    January 25, 1907.
    Contract not to be performed in one year —Statute of Frauds—when correspondence satisfies the statute — paroi evidence.
    The Statute of Frauds -is-satisfied if.every element necessary to constitute a binding contract is put in writing. A missing element, which is necessary to the contract, cannot be supplied by paroi, but paroi evidence is admissible to ' explain the meaning of terms used.
    A correspondence whereby the plaintiff agreed to sell to the defendant for two years various kinds of glass in approximately the saíne quantity as sold the previous-year “ at present, prices,” subject to trade reductions, satisfies the statute when- it a-p.peai'8 that in -the trade there are standard uniform price lists and customary discounts therefrom.
    Although the exact prices are not stated, they may he shown by paroi. Hirschberg, P. J., and Rich, J., dissented.
    Appeal by the plaintiff, Osear S. Flash-, from a judgment of the Supreme Court in favor of.the defendants, entered in the office of the -cleric of the county of Bichmond on the ,25th day of March, 1904, upon the report of a referee dismissing the complaint upon the merits.
    
      Arthur A. Michell, for the appellant.
    
      Allan McCulloh [Henry Hill Pierce with, him on the brief], for the respondents.
   Miller, J.:

. The "plaintiff -appeals from a- judgment dismissing his-complaint entered-on the ."report" of a-referee. The action is brought against the: defendants- as former members of a dissolved joint stock association, the Wagner Palace Oar .Co mpany, to reco ver damages for breach.of a contract.claimed to have been entered into between .-the plaintiff’s assignor and said-¡association pursuant to which the latter agreed to purchase of said assignor the various kinds and qualities of glass used by it -for the period of two years from July 1,1899.

The defendants set up the Statute of Frauds as a defense, and the learned referee dismissed- the complaint upon the ground-.that the contract was one not by its terms to be performed within a year from the making thereof and was void because not evidenced by the. writing required by the statute. (See Pers. Prop. Law [Laws of 1897, chap. 417], § 21.) On June 14,1898, the plaintiff’s assignor wrote said company the following letter: .

“Bew York, June 14, 1898.
“ The Wagner Palace Car Co. : * * *
“ Dear Sirs.— I hereby beg to submit to you .the following bid for the glass that you may require in the next twelve months: American polished plate 70$ and 10$; Crystal plate 60$ and 10$;. for double thick French 85$ and 7$$; for French Plate 70$ and 5$; for 26 ounce 50$ off, and for mirrors 80$. * * *
« “Yours truly,
“ F. H. DYOKMAB.”

and received the following reply:

“Bew York, June 25tk, 1898.
“Mr.,F. H. Dyokman: *' * * .
“ Dear Sir.— We hereby accept your bid of June 14th, for glass • that we shall require in the next 12 months, at the following prices, viz.: American Polished Plate, 70$ and 10$; Crystal Plate 60$ and 10$; for double thick French 85$ and 7J$; for French. Plate 70$ and 5$; for 26 ounce, 50$ off, and for mirrors 80$.
“ Yours very truly,
W. S. WEBB,
“ President.”

The contract thus made was nearly performed when the following correspondence occurred, which the plaintiff claims establishes the written contract for breach of which this suit is brought, to wit-:

“Bew York, April 10, 1899.
“ Wagner Palace Car Company : * * *
“ Gentlemen.— In connection with the enclosed, I hereby offer to renew the contract existing between your company and me, which expires July 1st next, for one year from that date at present prices, and I further agree that in the event of any reduction in glass prices by the trade generally to modify your prices accordingly.
“ Yours truly,
“F. H. DYCKMAB/’
“3STew York, April 16, 1899.
“ Wagíter Palace Car Company : * * *
“ Dear' Síes.— Referring to your acceptance (dated April 15tli) of niy letter of April ;10th on the subject of glass,, and your sugges-, tian that the arrangement be made for two years instead of one¿ I beg to say that I will make the agreement for two years provided you will undertake to ■ use approximately the same number of square feet of the various kinds of glass per annum in the next two years as you have used in the last year. Tinder these circumstances, I will guarantee you against any advance in price and give you the benefit Of any trade reduction, but to do this I will have to - be assured of a goodly,'volume of trade. I enclosed you in my letter of the 10th a' letter from the manufacturers indicating a general advance in prices and I should "have to have your acceptance of this offer before this advance takes place.
“ Yours truly,
“E. II. DYCKMAÑ.”

At the foot of the last letter the president of said company wrote the following:

“Renewal of .present contract with same guarantee accepted April 19, 1899,. for .two years for same number of square feet of the various kinds of glass. ■
“ W-. S'. WEBBj
“ President.”

Said company continued to order glass pursuant to the arrange- ■ ment thus made until December 31, 1899, when it dissolved. In the glass trade there were standard, uniform price lists for the various kinds and sizes of glass, and it was the custom of the trade to sell according to said lists, giving varying discounts therefrom- ■ The referee was of the opinion- that "the - agreement was not capable of being understood without resort to parbl testimony respecting the kinds, qualities and sizes of glass contracted for, and especially respecting the prices to be paid. It is> plain that the transaction involved in this suit was, at least, the attempted renewal of a contract then existing between the parties, and it is not disputed that, reference may he had to such contract, which is evidenced by the two letters first quoted swpra. It is. difficult to discover anything ambiguous in said letters. To be sure, trade terms are employed which can only be understood by resort to trade usage, but in the light of such usage they are plain. The plaintiff’s assignor offered to furnish said company the glass required by it during the next ensuing twelve months at a stated discount for the various kinds, which when read in the light of trade usage meant a discount from the standard, uniform price lists, dan there be any doubt that the written acceptance of this offer created a definite contract ? Is there any doubt that the parties understood the terms employed by them ? As disclosed by this record, this contract was performed without the slightest misunderstanding in respect of any of its terms, a single question having arisen respecting certain sizes and qualities used by said company not specifically mentioned in the letters referred to, which was adjusted by correspondence and incorporated into the contract then being performed. There can be no doubt that the parties understood the alleged second contract and performed it up to the time of the dissolution of said company, and it seems plain to me that by it plaintiff’s assignor agreed to furnish and the said company agreed to take all of the glass of the various kinds, sizes and qualities that the latter should require during the two year's next ensuing after the termination. of the contract then being performed, to be at least equal in quantity to the number of1 square feet of the various kinds that the latter had used under the existing contract at “present prices,” unless there should be reduction in the trade prices, and in that event that the prices to said company were to be reduced accordingly. It seems plaiq that the expression “present prices ” meant the standard uniform list prices then prevailing, less the discount specified in the letter of June fourteenth, and I am unable to discover anything indefinite in the provision respecting a possible' reduction in prices. The plaintiff’s' assignor agreed that there should be no increase, and that in the event of a decrease in said standard prices he would furnish the glass at said decreased prices, less, of course, the discount hereinbefore referred to. If these writings do not supply every element of the contract so as to show the complete understanding and intention of the parties, I am unable to understand the language employed. Many cases are cited in the opinion of the learned referee, and by counsel, to sustain the judgment appealed from, upon the.general proposition that the writing must contain the complete agreement of the parties • so that every essential part thereof and the full intention of. the parties can be gathered from it without resort to paroi evidence. It'is-unnecessary to analyze these cases in detail because the rule referred, to has long been settled law. Ho case, however, is cited upon the proposition that agreements required by the Statute of ^Frauds to be in writing are not to be construed like -other agreements; on the contrary, there is late and controlling authority upon the proposition that such contracts are subject to the ordinary rules of construction. (Seymour v. Warren, 179 N. Y. 1.) Such -contracts are -to b,e construed with reference to the -circumstances surrounding the parties (Hagan v. Domestic Sewing Machine Co., 9 Hun, 73), and trade terms may be explained by paroi evidence. (Dana v. Fiedler, 12 N. Y. 40.) The two cases last cited supra are referred to with approval by Cullen, J., in Brauer v. Oceanic Steam Navigation Co. (178 N. Y. 339, 345). The error of the learned referee resulted' from confusing an essential element of the contract not expressed in the-writing, with an expression found therein requiring explanation ; in the former case the missing element cannot be supplied by paroi, but in the latter case the court will put- itself in the position of the parties for the purpose of understanding-the ^agreement made by them.- The Statute of Frauds is satisfied if every -element necessary to constitute-a binding contract is put-in writing. Suppose the parties had agreed, the one to- sell and the other to buy, at the mar-_ ket prices obtaining whenever the orders should be given, can it be doubted that the■ agreement would be good? If the parties can make such an agreement, the Statute of Frauds is satisfied when it is evidenced by a memorandum signed by the party to be charged. The fact that resort would have to be had to paroi proof to determine the market prices would not affect the validity of the contract ’ or the sufficiency of the writing, so that it embodied every essential element of the contract.

- 1 think the judgment should be reversed.

Hooker and Gaynok, JJ., concurred; IIbbschbeeg, P, J., and Rich, J., voted to affirm upon the opinion of the referee.

'. Judgment reversed and new trial granted, costs to abide the event.  