
    Lavius F. Bristol, Respondent, v. Eugene W. Mente and Edwin V. Benjamin (Name “Edwin” Being Fictitious), Appellants.
    
      Statute of Frauds—sale of merchandise exceeding in value fifty dollars—a written agreement signed by the vendor and verbally accepted by the vendee may be enforced against the former — a tender of money, not all of which is legal tender, when sufficient—right to rebate on the price of a part of the goods which is paid far.
    
    If a vendor of chattels, the price of which is fifty dollars or more, signs an agreement to sell and delivers it to the vendee and the latter agrees by parol to purchase upon the terms mentioned in the paper signed by the vendor, there is a binding agreement which may be enforced against the vendor.
    What evidence given in an action to recover damages for the breach of an alleged contract, by .which the defendants agreed to sell to the plaintiff about twenty-five thousand linen bags for the sum of twenty cents apiece, is sufficient to show that the contract was actually made and that it was not invalid under the Statute of Frauds, considered.
    
      Where the vendee of the bags, in order to place the vendor in default under the contract of sale, tenders to him §6,000, of which §5,550 are in gold or legal tender notes and §450 are in United States or national bank notes, which latter • are not legal tender, and the vendor does not object to the character of such notes, the tender is good.
    In any event, the objection is not available to the vendor as a ground for reversing a judgment rendered against him in an action brought by the vendee to recover damages for the breach of the contract, where it appears that the amount of damages awarded does not exceed the minimum amount of damages which the vendee suffered by reason of the vendor’s refusal to deliver the, number of bags for which the concededly valid portion of the tender was sufficient to pay.
    Where, in such an action, it appears that the vendee, before making the contract to purchase the entire lot of bags, had purchased and paid for a portion thereof under an agreement by which, if he took the entire lot, he was entitled to have a rebate of five cents apiece upon those he had previously purchased, he is entitled to recover the amount of such rebate as an element of damages.
    Jenks, J., dissented.
    Appeal by the defendants, Eugene W. Mente and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of February, 1902, upon the verdict of a jury for $2,549.12, and also from an order entered in said clerk’s office on the 26th day of February, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      Dean Emery [Frederic R. Kellogg with him on the brief], for the appellants.
    
      Robert L. Luce and William D. Sawyer, for the respondent.
   Goodrich, P. J.:

The defendants composed the firm of Mente & Co. of New Orleans. In December, 1899, the firm purchased of the United States government a large lot of linen bags which had been damaged at the Brooklyn Navy Yard by fire and acids. The defendants stored them at the warehouse of Pell & Pickford, on Warren street, New York city. In February, 1900, the defendants advertised the bags for sale, and Mr.' Campion, a broker, called upon E. W. Mente, one of the defendants, at the Astor House, and asked for a sample of the goods, and was told by him that he could go to Pell & Pickford’s and get a sample. Mente promised to pay Campion one cent per bag, brokerage. He testified that he told Campion that if he took any customer to Pell & Pickford, Mr. Pell had “ authority to take the money and deliver those bags.”

Campion testified that Mente gave him the bags to sell and instructed him to report all transactions to Péll & Pickford, that all transactions were to go through Pell & Pickford, and that this was the only lot of linen bags which the defendants placed in his hands for sale. Thereafter Campion called upon the plaintiff and showed him the sample, and the plaintiff ordered from Pell & Pickford 500 bags to be sent to him on memorandum for examination, and later bought 6,000 others, which were paid for to Pell & Pickford at the price of twenty-five cents per bag. The following correspondence ensued between Campion and the defendants':

“New York, Feby 27, 1900.

Mr. E. W. Mente :

“ Dear Sir. — L. F. Bristol, No. 42 Lispenard St is interested in the Linen goods — & it is very likely will use the entire lot. I introduced him to Mr. Pell & after inspecting them had 500 delivered & would like 1000 more but P & P do not want to take any further responsibility, untill they hear from you. This is a reliable party been in business for 25 years or more & rated in Dunn 10 to 20 m good Credit he also gave a dozen good houses as references, the price named was 25 cts or for the lot 20 cts net cash. I suggested that they be put on memo untill your return & then you can fix the matter with him satisfactory.

“Very Respectfully,

“ J. T. CAMPION,

“ Care Jas Thompson & Co 12 White St.

“ P. S. Please let me hear, from you by next mail.”

“ New Orleans, Ma/rch 6th, 1900.

“ J. T. Campion, Esq.,

“ C/o Jas. Thompson & Co.,

“12 White Street,

“ New York City: .

“Dear Sir.—Your favor of the 27th ult. has remained unanswered on account of same being addressed to the writer personally instead of to the firm, and only came into my hands to-day owing to my absence from here. I am very sorry this happened, but as' you will see, under the circumstances it is not our fault. Now, in reference to the linen bags, would say that my understanding with you was that you were to sell same at 25c each in any lots you could, but that in case any one party would take, the remaining total lot the price should be 20c for all said party had bought. You will understand that this arrangement cannot go on indefinitely, and if the gentleman you mentioned, namely, Mr. L. F. Bristol, is agreeable to take the whole lot at~20c, he must make up his mind in the course of a week or ten days, as we are in negotiations with several parties who have samples of these goods and also have bought small quantities of same. I do not expect to- be in your city much before April 1st. Please let us hear from you anything that may turn up, and kindly address all letters to the firm,

“ Yours truly,

“E. W. MENTE.

“ All sales to be nett cash.”

“New York, Ma/rch 8, 1900.

“ Mr. E. W. Mente :

“ Dear Sir.— L. F. Bristol, 42 Lispenard, is interested in these linens and has had 3,500 delivered up to the present time. I would like to see you on your arrival in reference to same.

“Respectfully, &c.,

“J. T. CAMPION.”

“New York, Mch. 9th, 1900.

“ Messrs. Mente & Co.,

“New Orleans, La.:

“ Dear Sirs.--- Your favor of the 6th inst. received, and in reply would state that L. F. Bristol has had delivered & paid for to Pell & Pickford 3,500 bags, and will probably control the entire lot; will advise you more fully when the transaction is completed.

“Yours truly,

“J. T. CAMPION.”

“New Orleans, March 12tk, 1900.

“ J. T. Campion, Esq.,

“ C /.o Jas. Thompson & Co.,

“ 12 White Street^

“New York:

“Dear Sir.— We herein confirm our wire to you this morning, reading: ‘Not having heard definitely from you have given other parties option on bags, do nothing, await letter,’ which we sent before your favor of the 9th inst. was received.

“We have entered into negotiations with parties here in reference to these bags, and, therefore, wish you would hold off offering any more of them till our Mr. Mente will be in your city again, which will be, perhaps, in about ten days or two weeks. Mr. Bristol had ample time to make up his mind whether he wanted them or not, and perhaps missed it by not taking them when he had the chance.

“ Tours truly,

“MENTE & CO.”

“ Telegram.

* * *

New Orleans, La., Mali. 12, 1900.

“ J. T. Campion,

“ Care Jas. Thompson & Co.,

“ 12 White Street:

“Not having heard definitely from you have given other parties option on bags do nothing await letter.

“MENTE & CO.”

“ Telegram.

“Received at Main office, 253 Broadway, New York, March 12.

“Dated New Orleans, La., 12.

“ To Pell and. Pickford,

“12 Warren st.,

“New York:

“'Don’t sell linens written to-day fully.

“MENTE. & CO.” “New Orleans, March 12th, 1900.

“ Messrs. Pell & Pickford,

“ 121 Warren Street, . . •

“New York City:

“Gentlemen.— We herewith confirm our wire of even date, reading as follows: ‘ Don’t sell Linens written to-day fully,’ and would say that we are about to make disposition of these linen bags; therefore do not dispose of any more at a lower price than 30c. each till our Mr. Mente will come to your city again in the course of ten days or two weeks.

“ Yours truly,

“ MENTE & CO.” '

■It may be noted in passing that while the defendants in their letter of March twelfth say that the first telegram of March twelfth was sent before the receipt of Campion’s letter of the ninth, Mente testified that both telegrams' of that date were sent after the receipt of such letter.

On Friday, March ninth, Campion showed the plaintiff the defendants’ letter of March sixth and the two went to Pell & Pickford.’s store and spent that and the following day in examining the bags. At the close of such examination and on the tenth, as the plaintiff testified, he asked Pell how many bags there were and was told about 30,000, and he told Pell that he would take all the bags, including the 500 which he had on memorandum, and “ offered to pay a deposit to bind the transaction. No deposit was accepted. Mr. Pell said it was not necessary,” and that as Saturday was a short day he would commence delivery on Monday morning or whenever the plaintiff was ready.

Mr. Campion testified that the plaintiff told Pell that he would take the whole lot of bags and asked him if it was necessary to make any deposit. Mr. Pell said it was not, that he had dealings with him and he was satisfied everything was all right. That was all that, was said. Nothing else was done about the matter * * * except that he (Bristol) agreed to take them (the bags which remained in store) on the following Monday or Tuesday. We two went down on the following Monday or Tuesday to get the goods.” At this time Pell told them he had wired the defendants 11 About to deliver bags to Bristol. Await your instructions,” and had received a wire from him not to deliver the bags.

Mr. Pell was not a witness, and we must assume that the interviews were correctly stated by the plaintiff and Campion.

The plaintiff tendered Mr. Pell $6,000 and demande 1 the bags, but delivery was refused. There was evidence sufficient to establish that there remained unsold about 25,500 of the bags and that the damage to the plaintiff by their non-delivery was ten cents per bag, and the jury rendered a verdict for $2,549.72.

The defendants contend, first, that no contract was ever entered into between the parties for the purchase of the goods; second, that even if one was made it was invalid under the Statute of Frauds; third, that no sufficient tender was made, and, fourth, that there was error in the admission of evidence as to values and damages and in directing the jury to allow plaintiff’s claim for rebate.

First, there is abundant evidence that the parties entered into a bargain for the sale of the entire lot at twenty cents per bag. The defendants employed Campion as a broker to sell the entire lot at twenty cents a bag or portions at twenty-five cents per bag, and afterwards wrote him a letter embodying these terms, procured him a sample and referred him to Pell & Pickford, through whom all transactions were to be made and delivery to be had. On Saturday, the tenth, after examination of the goods, the plaintiff told Pell that he would take the whole lot, including the 500 which he had on memorandum; Pell accepted the offer, waived present deposit and agreed to commence delivery on Monday or Tuesday following. The jury has found on sufficient evidence that there was such a bargain.

Second, the contract, being for the sale of chattels for the price of fifty dollars or more, must have been in writing, subscribed by the defendants, or the plaintiff must have accepted and received pai’t of the goods, or at the time of the contract have paid part of the purchase money. (2 R. S. [9th ed.] 1886, § 3.)

We must not lose sight of the object of the statute. Mr. Green-leaf says: “ The rules of evidence contained in this celebrated statute are calculated for the exclusion of perjury by requiring in the cases therein mentioned some more satisfactory and convincing testimony than mere oral evidence affords.” (1 Greenl. Ev. [15th ed.] § 262.) With this reason in mind we examine the letters and telegrams of the defendants addressed to their broker, Campion, to ascertain whether the terms of the contract are in writing. If they are, the purpose and reason of the statute are not infringed.

It is unnecessary to cite authority that the terms need not he in a single instrument, and may he derived from letters addressed to a third person connected with the transaction.

In the leading case of Justice v. Lang (42 N. Y. 493, 497) the court said : Comyn, in his work on Contracts (page 2),]- says: A simple contract, or contract by parol, is defined in our law hooks to be ‘ a bargain or agreement voluntarily made upon good consideration, between two or more persons capable of contracting, to do, or forbear to do, some lawful act.’ * * * And six things appear

necessary to concur : 1st. A person able to contract. 2d. A person able to be contracted with. 3d. A thing to- be contracted for. 4th. A good and sufficient consideration, or quid pro quo. 5th. Clear and explicit words to express the contract or agreement. 6th. The assent of both the contracting parties.’ ” It is evident that all of these particulars appear in the defendants’ letters except the assent of the contracting parties. The vendor was the defendants’ firm. It made an offer of the bags through its letter to a broker. The intending vendee was the plaintiff, whose name was known to, and appears in the letter of, the defendants. The thing to be contracted for was the lot of linen bags belonging to the defendants in the warehouse of Pell & Pickford. It nowhere appears that the defendants owned any other bags. The consideration was twenty-five cents per bag for a part or twenty cents per bag for the entire lot. The words used in the defendants’ letter to express this agreement were clear and explicit. Surely, in all the required particulars of the terms of the contract referred to in Justice v. Lang (supra), the written papers subscribed by the defendants are complete.

The next question is whether or not the plaintiff accepted the terms and made a contract with the defendants or with their authorized agent. In Mason v. Decker (72 N. Y. 595) it was held (p. 598) that “ If the purchaser signs an agreement to buy, and delivers it to the seller, and he agrees by parol to sell upon the terms mentioned in the paper signed by the purchaser, there is a binding agreement which can be enforced against the purchaser.” The converse of the proposition is equally true and applicable to the present case. (See, also, Sanborn v. Flagler, 9 Allen, 474.)

Mr. Browne, in his treatise on the Statute of Frauds (5th ed. § 321a) says: “ Where the thing contracted to be sold is defined, specified and ascertained at the time of the purchase, proof of the fact that the buyer then agreed to buy that particular thing, and consequently thereby finally recognized and identified it as the particular thing he was to get, will, in general, be a sufficient proof of an acceptance by him. This was clearly brought out in the case of Cusack v. Robinson ” (1 Best & S. 308).

The evidence is clear that Pell was the agent of the defendants to complete the sale, and that the plaintiff agreed to buy the bags on the exact terms mentioned in the defendants’ letter, and it may be added that Pell accepted the plaintiff’s agreement of purchase, so that the minds of the parties met in the transaction on all the terms of the contract. The plaintiff was then and there ready to take delivery and offered to pay the price, but Pell said that the -goods could not be delivered till the following business day. Pell had clear authority to complete the sale, and he did complete it at that time. The words, at the foot of the letter of March sixth, All sales to be nett cash,” were not disregarded by Pell or the plantiff. The latter offered to pay, and Pell simply postponed actual payment of the price until the actual delivery of the bags. This was not inconsistent with his instructions from the defendants.

Besides, it appears that, at the time of the bargain on the tenth, the plaintiff had received 500 bags on a memorandum, by which, I understand, under the evidence, was meant that he had received these bags conditionally, to see whether he would or would not purchase them. On the tenth these 500 bags were in his possession and not paid for. On that day he told Pell that he would take the whole lot, including the 500 lot. This lot he had not previously agreed to take, and had not paid for. But his agreement to take all the bags included the 500, and so the plaintiff did at that time actually “ accept and receive ” a part of the whole lot under his contract of that' date to purchase the entire lot.

It also appears that Pell said he would wire the defendants that he had sold the bags, and he did wire the defendants, apparently on Saturday, that he was about to deliver the bags to Bristol. This confirms the evidence that he had accepted the plaintiff’s offer and had completed the sale. Campion also wrote the defendants on the twelfth informing them that the plaintiff would accept the goods. The court instructed the jury very clearly on the subject: “ It is for you to say upon this testimony with reference to the relations between Pell and the defendant and Campion and the defendant what the extent of their agency was with respect of these goods. Did Pell have the right, by reason of any authority he had from the defendant, to say that these goods could be held there until Monday without a delivery, and that there need be no cash paid until that time ? If he did, then the defendant is bound by it.,

There is no proof in this case that there was to be any cash paid until the delivery, but the cash was to be paid upon delivery. The delivery, according to the testimony of 'these people, was to be upon the Monday following. That was the day when the plaintiff said he would take this whole lot of goods,, and Campion insists that he had a right, under this letter of March 6th, to sell these goods to Bristol at that price which he says was consummated upon that day; that is, upon the Saturday.”

The jury, under this charge and on sufficient evidence, have found that the defendants had constituted Pell their agent for the sale and for the incidents attendant thereon. The acceptance by Pell of the plaintiff’s offer completed the contract of sale; the delivery and the payment on delivery were but incidents of the transaction, which was complete on the acceptance by Pell of the plaintiff’s offer to purchase on the terms named by the defendants.

Thvrd, there was a sufficient tender of the price. Pell telegraphed the defendants that he was about to deliver the bags, but, acting under the telegram which he received in answer from the defendants, dated March twelfth, two days after the sale, and which he told the plaintiff was received by him on the thirteenth, refused to deliver the bags to the plaintiff, who afterwards tendered the price. It appears that $5,550 of the tender was in gold or legal tender notes, and $450 in United States or national bank notes, the description of which is not very clear; but as no objection to the character of the tendered notes was made by Pell, the defendants were not in a sitiiation to object. Pell could have received the notes in payment, and, as he made no objection to them, the tender remains good. Besides, the verdict is for $2,549.72. Assuming that the jury founded their verdict as to the amount of the damages on the lowest estimate of value, that is, ten cents per bag, the award would be for 25,497 bags. The tender was $6,000, which would be the price of 30,000 bags. Defendants only claim that $400 of the tender was not in legal tender notes, and, even if this fact was proven, there remained $5,600 of legal tender notes, which was more than sufficient to pay for 25,497 bags.

Fourth, there is no error in the admission of the evidence as to the value of the bags. The. witnesses were shown to be acquainted with the value of such goods. One of them bought and sold a portion of them, and the weight to be given to their testimony was a matter to be determined by the jury.

Fifth, the claim for rebate was well and properly stated by the court, when it said : “ Then, in addition to that, there is another element in this case, if you get to the question of damages, and that is as to this matter of rebate. The proof is here that the plaintiff had had a quantity of these bag's for which he had paid twenty-five cents, and his claim is that, if he took the entire lot, he was entitled to have a rebate of five cents apiece on these he had paid for, and he says he has paid for all he got. You have a right to take that into account in judging the amount of damages by reason of this rebate.” It appeared that before the plaintiff accepted the entire lot of the bags he had received a portion of them, for part of which he had paid twenty-five cents per bag and part of which he held on memorandum. The defendants’ letter of March sixth to Campion, uses the words, in case any one party would take the remaining total lot the price should be 20c for all said party had bought.” It is clear that the charge of the learned justice was based on and in accord with this condition.

We are of opinion that there was evidence justifying the verdict on the ground that there was a contract for the sale of the bags on the terms named by the defendants ; that the contract was in writing, as required by the Statute of Frauds ; that there was a sufficient tender of the price; that as the plaintiff purchased the entire lot, he was entitled to the rebate, and that the amount of damages fixed by the verdict was established. The exceptions to the charge are not tenable.

The judgment and order should be affirmed.

Bartlett, Woodward and Hirschberg, JJ., concurred; Jerks, J., dissented.

Judgment and order affirmed, with costs. 
      
      29 Car. 2, chap. 8.— [Rep. fVol. 1, p. 2.— [Rep.
     