
    PHILIP S. JUSTICE, Plaintiff and Appellant, v. WILLIAM B. LANG and GEORGE M. WHEELER, Defendants and Respondents.
    
    This case has had three trials, and this is its third appeal to the general term.
    Review, by the court, of the questions presented on the former trials and hearings (Moheli, Oh. J.).
    Two findings of fact, by the referee, on the last trial, are (in the opinion of the court at general term) fully supported by the evidence, and conclusively and properly disposes of the case.
    These findings are as follows:
    “That said memorandum or agreement was not delivered absolutely, but only in the expectation and on the condition that a written order should be given by the plaintiff for two thousand rifles, and which was to embrace the one thousand rifles mentioned in said memorandum or agreement, in such a form as to make it a valid contract upon the plaintiff as well as upon the defendants; and that the understanding of both parties was at the time of said memorandum or agreement was delivered that the contract for the said rifles was incomplete and only to become perfect upon the receipt, by the defendants, of the written order from the plaintiff to procure for him the two thousand rifles mentioned and referred to, of which the said one thousand rifles were a part and parcel.” “That at the time when the said defendants made, executed, and delivered to the plaintiff the memorandum or agreement in writing, bearing date on Hay 13, 1861, the said plaintiff did not accept the said agreement, absolutely and unconditionally, as a completed contract.”
    Before Monell, Ok. J., and Curtis and Sfeir, JJ.
    
      Decided May 10, 1875.
    
      Appeal from judgment entered upon the report of a referee.
    
      E. Terry, for appellant.
    
      Oscar Smedburg, for respondents.
    
      
       This case was decided on this last appeal, substantially upon the findings of fact of the referee; but as it reviews the former trials and hearings, it is deemed worthy of reporting, that its professional history may be completed. &c.
    
   By the Court.—Monell, Ch. J.

Upon the first appeal in this case (42 N. Y. 493) the court held that the memorandum signed by the defendants was sufficient to constitute a valid contract, within the statute of frauds, if there was a consideration therefor moving to the defendants ; and that an acceptance of the memorandum by the plaintiff, and a promise, express or implied, to accept and pay for the guns, was a sufficient consideration. And it seems to have been assumed by the court that there was evidence of such acceptance and promise, and a new trial was ordered.

Upon the second trial the submission to the jury was confined to the question of damages. The court refused to submit to them whether there had been an express or implied promise to accept and pay, not on the ground that there was no dispute in the evidence, but that such promise was to be necessarily implied from the circumstance of the plaintiff’s receiving the memorandum from the defendants, about which there was no dispute.

Upon the second appeal (52 N. Y. 323) the court affirming the former decision sustaining the validity of the contract, has left the only remaining question that of consideration, which as the case then presented itself, was held to be one of fact for the jury.

I have not been able to discover any essential difference in the evidence as given on the second and last trial. The effort of the defendants on each occasion, has been to establish that the delivery of the memorandum was upon a condition not fulfilled by the plaintiff.

The answer of the defendants • alleges, that the plaintiff agreed to give a written order for the one thousand rifles, and to give a further order for one thousand more, to be accompanied with a letter of credit; and that upon that condition the memorandum was delivered to the plaintiff. The evidence shows tliat the plaintiff declined, for a reason stated, to give the written order until his return to Philadelphia, but promised to send it from that place.

The dispute arises as to whether the order was to be for one thousand or for two thousand rifles. The defendants insist that the condition was, that the order should embrace both lots, and should be for two thousand' rifles, including the one thousand mentioned in the memorandum, and the one thousand which was to be the further order. While the plaintiff avers that the only order he was to give, was for the second lot of one thousand, insisting that the contract for the first one thousand was complete by his acceptance of the written memorandum.

The presumptions which arise from facts are not presumptions of 'law, but of fact. A jury might infer from circumstances that the plaintiff had promised to accept and pay for the one thousand rifles mentioned in the memorandum. Even though they found the order related to ihe last one thousand rifles, they might, looking at the manner of delivery of the memorandum, have, perhaps, implied from it a promise to pay.

But, as the court say, that being a presumption of fact, must be decided by the jury “under the rule which so clearly separates the office of the judge from that of the jury.”

The theory of the plaintiff, that, if the order referred or related to the second lot of rifles, so as not to make it a condition affecting the first or memorandum lot, there was sufficient other evidence from which could fairly be inferred that he had promised to accept and pay for the first lot, made it no less a question for the jury, and raised no presumption of law, which, could authorize the court to dispose of it. Neither would such an inference, or a positive finding of a promise to pay, necessarily destroy the other defense, that although there may have been a promise by the plaintiff, the defendant’s promise was upon a precedent condition, which had not been fulfilled.

The defense was, that the memorandum was not to take effect as a contract, until the plaintiff had given the order for the two thousand rifles ; and the referee has found as a fact, “that the memorandum or agreement was not delivered absolutely, but only in the expectation and on the condition that a written order should be given by the plaintiff for two thousand rifles, and which was to embrace the one thousand rifles mentioned in the memorandum or agreement, in such a form as to make it a valid contract upon the plaintiff as well as upon the defendants; and that the understanding of both parties was, at the time the memorandum or agreement was delivered, that the contract for the rifles was incomplete, and only to become perfect upon the receipt by the defendants of the written order from the plaintiff to procure for him the two thousand rifles mentioned and referred to, of which the one thousand rifles were a part.”

This finding, it seems to me, conclusively disposes of the plaintiff’s case, if it is fairly supported by the evidence, and I think it is.

But there is another finding by the referee which comprehends the whole ground of action, and destroys the only basis on which the memorandum can be sustained under the statute.

The referee finds that the plaintiff did not, at the time the memorandum was delivered to him, accept it absolutely and unconditionally as a completed contract, and did not agree at that time to be bound by its terms.

This latter finding disposes of any alleged implied, or express promise to accept or pay for the rifles referred to in the memorandum.

The appellant claims that the interpolation of some words, in an extract from the opinion of the court upon the last appeal, has led to the error which he insists the referee has fallen into.

The court say the jury might have found that a written order should be given by the plaintiff, and the referee has added as if a part of the opinion—“for two thousand rifles, being for one thousand in addition to those mentioned in the memorandum.’’ But the court had just previously alluded to what the plaintiff had said—“I want to order two thousand rifles,”-—upon the strength of which, and a representation concerning the capacity of Birmingham, for the manufacture of rifles, the defendants consented to take an order for two thousand guns. The memorandum was then delivered, the defendants saying, “ Give me the order.”

The order, therefore, which the court say the jury might have found,, was the order for two thousand guns, which would of course cover the one thousand mentioned in the memorandum. The words interpolated by the referee, are not inconsistent with, but as an amplification of the meaning of the court, in its reference to the order which might be found from the evidence.

The effect of this allusion to an order for two thousand rifles, to include the one thousand specified in the memorandum, was not that the first contract was, or was to be for two thousand rifles. The second lot was a further order—in addition to the first lot—it was spoken of at the same time, and the plaintiff promised that the order to be sent from Philadelphia, should cover both the first and the further lots, making in all two thousand rifles. This is a legitimate inference from all the evidence; and I have failed to find the attempt anywhere made, to make the memorandum cover the two thousand rifles. The second lot was yet to be ordered, and the order was promised to be sent. The parties did not regard it, and the court has nowhere so construed or treated it, as changing a contract for one thousand guns, into a coritract for two thousand guns. The contract for the first lot was to be complete upon receiving the order for the two thousand, which was to include the first lot, but the defendants were, probably, not bound to accept the entire order, and could have rejected the second lot, retaining the order as consummating and completing the agreement for the first thousand. But even if the condition was that the order should be for two thousand rifles, and that the memorandum for one thousand should be incomplete„as a contract, until the condition was fulfilled, it was a lawful condition, and the plaintiff in default of complying with it, has no means of otherwise furnishing the necessary consideration to satisfy the statute óf frauds.

The question left by the court of appeals as the only question to be disposed of, namely, whether there was a promise of the plaintiff to accept, and pay for the guns specified in the memorandum, has been, it seems to me, fully and carefully considered by the referee upon all the evidence in the case. He was authorized to give importance and prominence to the evidence tending to establish the existence of a condition precedent as affecting the memorandum; and having found against the plaintiff on that question, upon evidence sufficiently conflicting to bring his decision within the well'recognized rule in regard to the review of questions of fact, it should not be disturbed.

It does not, in my judgment, affect the question, that the order embraced, or was to embrace, more than the one thousand guns specified in the memorandum. .It was essential to the validity of the contract, than an order for the first lot should be given, and it is quite immaterial, whether it was separately given, or was included in one general order for both lots.

Nor is the defense weakened by the action of the defendants in immediately upon the delivery of the memorandum, proceeding with measures to fulfill their part of the agreement. Trusting to the promise of the plaintiff to give vitality to the contract, by sending his written order from Philadelphia, they were justified in being active, as their time for delivery was limited.

In conclusion I believe that the case has been fairly decided. The plaintiff was endeavoring to recover a loss of profit only. He had parted with neither money nor value ; and as the referee has decided, incurred no corresponding liability to the defendants. He was bound, therefore, to show a clear right to recover. Not having done so he must submit to the judgment against him.

The judgment should be affirmed.

Curtis, J., concurred.

Speir, J. (dissenting).—

The following memorandum or instrument in writing signed by the defendents is the alleged contract on which the plaintiff brought his action for the recovery of damages for the non-performance of the contract.

“ New York May 13, 1861. We agree to deliver P. S. Justice one thousand Enfield rifles, no other extras, in New York at eighteen dollars each, cash upon such delivery. Said rifles to be shipped from Liverpool not later than the 1st of July, and before if possible. W. Bailey Lang & Co.”

It is of the first importance to clearly understand and keep before our minds what the court of last resort has actually settled as the law of this case. After two arguments and upon a full consideration, it was solemnly decided by the court that the signing of this instrument by the vendors, the contract was taken out of the statute of frauds and binds the defendants, although it was not signed by the plaintiff; and it was consequently held that it was a valid instrument binding the defendants to deliver the rifles according to its terms, and that the contract was supported by a sufficient consideration (Justice v. Lang, 43 N. Y. 493).

The case was again tried, and the above adjudication was followed, and the plaintiff obtained a verdict and judgment which was affirmed by the general term of this court. An appeal was taken from this judgment to the court of appeals which was reversed and a new trial ordered. A new trial was had before the referee, who has found for the defendants, and an appeal is now taken from the referee’s decision.

By the last decision of the court of appeals, reported in 53 N. Y. 333, the learned judge adopts the conclusions the court had come to on the former appeal, as binding in this case ; and at the outset, in disposing of the case, it is conceded, as before decided, that the contract was supported by a sufficient consideration in the implied verbal promise of the' plaintiff to accept and pay for the rifles. The judge, on the trial which was last before the court for review, refused to submit to the jury any questions except those relating to damages, to which the defendants excepted. This was held to be error, for the reason if the plaintiff was entitled to recover it must be upon the theory that the written promise of the defendants, and the verbal promise of the plaintiff at the same time with the written promise, constituted together a consummated agreement upon which the defendants have-been charged; and the court held that it was a question for the jury to determine whether there was an agreement by plaintiff to receive and pay for the thousand rifles.

The only question, therefore, which now comes before us, is the one discussed by the learned judge in his opinion—whether there was such a promise. As the case then stood, the evidence was conflicting, and it was for the jury to pass upon. Our attention is now called to a review of the evidence and findings of the referee.

The plaintiff and the defendant Wheeler, are the main witnesses who testify to the circumstances under which the contract was made, and who were present at the time.

There is no discrepancy between them in the following particulars. They agree that the paper or contract was drawn up and signed by Wheeler; a copy made by him and delivered to the plaintiff, who took it away with him, Wheeler retaining a copy or the original ; that Wheeler wrote the letter to Goodman at the same time, of the same date as the contract, and deposited it in the post, which went by the mail on the following morning ; that the defendants were the agents of Scoffleld & Goodman, and conducted their business in New York ; that Goodman was chairman or president of the Burmingham Small Arms Company; and that the defendants, as agents for Sooffield & Goodman (as testified to by Goodman), from time to time sent orders to them for guns.

The single point in controversy between the parties may be stated as follows :

The plaintiff claims that the contract signed by the defendants and delivered to him was completed and binding, and so understood by both parties at the time ; that no written order was to be given by him to the defendants for the one thousand rifles mentioned in the contract; that the parties then acted upon the paper as a consummated contract; and that the other order spoken of was to go with a letter of credit to provide for the payment in England of another one thousand, which was contemplated and discussed by the parties, but not then settled by any agreement between them.

. The defendants’ position is that the paper signed m them was only a conditional contract, and was not de livered absolutely, but on the expectation that a written order for two thousand rifles should be delivered tr them, together with a letter of credit for the payment in England, for an additional one thousand rifles, besides the one thousand named in the contract. All the testimony in the case has been introduced by the respective parties to establish these positions as respectively claimed by each.

Bearing in mind that the decision of the court adopted by the learned judge in this case, was that “ if the contract was then consummated it is to be deemed valid in law,” then all prior negotiations were merged in the contract thus made. In order to ascertain whether there was such a promise which would support a sufficient consideration, we must direct our attention to the evidence, which shows what occurred at the time when and after the paper was signed and delivered.

• Wheeler says he said to the plaintiff, after having signed and read it to him, “ I want to add at the bottom of this, that we shall not be held for these rifles, in case they do not come. He (plaintiff) said to me, ‘ Do not put that on there. If you do you will spoil it.’ I want to show that all is right.” On the part of the defendant, this precaution can be only explained on the ground that the contract bound him, and he was providing against his liability. The objection of the plaintiff doing so, is intelligible only on the ground that the contract would lose its binding force by such an insertion.

When the contract was signed and delivered, the de- . fen dan ts took immediate action by sending forward a letter written by them to their agents in England: “Please put in hand at once, the one thousand ahead of Syms (as with him I have held out no inducement for delivery), and get them off by invoice and bill of lading in our name, that I may not be brought in for damages, if the contract is not complied with.” There is no evidence in the case, that plaintiff knew the contents of this letter.

On the following day, May 14th, Wheeler writes to Goodman: “ Justice has given me an order for two thousand, one thousand of which I have agreed shall be shipped not later than the first of July, from Liverpool, . . and I shall be extremely anxious until you ship this thousand for Justice, as unless you do we shall be brought in for damages ; a letter of credit will go out by the next mail; if you have not one thousand in yours works to finish up in the time specified, get them from others, as this order must be jilted by us”

On May 16th, Wheeler writes to plaintiff, to send him the letter of credit to go by the Wednesday’s steamer, also the order, and says he should have made one stipulation, “in that contract made with you,” that he should throw in one of those ponies out of the lot he has. This letter is answered by the plaintiff, May 31st: “I tried to arrange for your credit to-day, not because it was part of the agreement, but to oblige you. It was specially stated, if I ordered another thousand, I would provide another means of payment, viz., in England ; and he says the money is deposited with a banker, for thousand ordered of you, payable to my order on delivery of the rifles, and adds, ‘ I will throw in the pony if the guns are delivered to me before July 1st, sure.' ” On May 30th defendants wrote to Shipley, their agent: “ Justice gave me an order which went out last week for one thousand, and was to give another order to go this week for another one thousand, with his letter of credit for the last lot, and, perhaps, for both. Please see about this, and telegraph us if he has not already written us.” And on May 93rd, Wheeler writes to Shipley : “ The Connecticut order has been nobly can-celled. Justice can but do the same. It is represented that English steamers refuse to bring any more arms to America. If this is trae, I am precluded from tilling ihe order, as I did not fix delivery here, but shipment from Liverpool.” The letters of May 13th, 90th, and 93rd, were not on the former trials put in evidence.

There is no evidence in the case establishing any contract between the parties for the sale of two thous- and rifles. There is, then, no such contract. It is true the parties contemplated entering into an arrangement, the effect of which would be, if adopted, to add one thousand rifles more, which should be paid for by a letter of credit in England, and an order for the same. This arrangement was put an end to by the plaintiff’s letter, May 91st. So as to this, the defendants had distinct notice when -they wrote to their agent Shipley, that the Connecticut order had been cancelled, and plaintiff “ can but do the same.”

The letter of May 90th, written by the defendant to-his agent Shipley, states precisely what the contract was : “Justice gave me an order which went out last week-for one thousand, and was to give me another order to go this week for another one thousand, with his letter of credit for the last lot, and perhaps for both.” Here is a complete statement of the whole matter. He treated the contract in his possession as a sufficient order to act upon, and he did so act. He expected an order from the plaintiff for another one thousand, with his letter of credit for the last one thousand. He was anxious to have this contract with the plaintiff cancelled, as the Connecticut order had been nobly done. I think it would be a want of proper appreciation of the intelligence and experience of these parties as merchants, to believe that all this correspondence relating to a matter of such importance, could be conducted by them without being fully aware of their liability under the contract in question.

The judgment should be reversed.  