
    Andrew J. Slade, Appellant, v. Frank Boutin, Junior, Respondent, Impleaded with Others.
    
      Contrast of sale — bills with prices carried out and a statement as to the terms of payment and the commissions—they are not sufficient memoi'anda within the Statute of Frauds.
    
    Horace L. Hubbell, who was president of the Hill <to Hubbell Lumber Company, manager of the East Norwalk Lumber Company and vice-president of the Westport Lumber Company, wrote to a firm doing business under the name of the Wisconsin Lumber Company, inclosing a bill of lumber and asking for prices thereon. The firm answered, inclosing prices as requested and invited Hnhhell to call. In response to the invitation Hubbell had an interview with one of the firm, who delivered to him two hills of lumber (not containing the usual words “ bought of”), with the prices carried out opposite the several items thereof and a statement at the bottom of each as to the terms of payment and the- commissions to be credited to the Hill & Hubbell Lumber Company. One of these bills was headed “ Hill & Hubbell Lumber Co.; ” the other was . headed “Westport Lumber Co.," and contained in the body of the bill the words “East Norwalk Lumber Co.” Each of the two bills were signed at the bottom thereof, Wisconsin Lumber Company, per F. Boutin, Jr., Manager. The lumber included in the bills was valued at more than fifty dollars.
    -In an action for damages for a breach of contract on the part of the Wisconsin Lumber Company in not delivering the lumber,
    
      Held, that the written instruments were not sufficient to satisfy the requirements of the Statute of Frauds, and that parol evidence was not admissible to supply the defects contained therein.
    Appeal by the plaintiff, Andrew J. Slade, from a judgment of the Supreme Court in favor of the defendant, Frank Boutin, Junior, entered in the office of the clerk of the county of Niagara on the 21st day of February, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Niagara Trial Term, and also from an order entered in said clerk’s office on the 13th day of September, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      John S. Seymour, for the appellant.
    
      John C. Hubbell, for the respondent.
   Williams, J.:

The judgment and order appealed from should be affirmed, with costs.

The action was brought to recover damages for breach of alleged contracts to sell and deliver lumber. At the close of the plaintiff’s evidence the court granted a motion for a nonsuit, on the ground that no contracts were proved which were valid under the Statute of Frauds. The property alleged to have been sold was concededly of the value of more than fifty dollars, no part of the alleged purchase price was paid, and none of the lumber was delivered. It was, therefore, necessary, in order to establish a valid contract, to show that notes or memoranda of such contracts were made in writing and were subscribed by the parties to be charged thereby. (2 B. S. [Banks 9th ed.] 1886, § 3.)

The court held that no such notes or memoranda were shown to have been made, and this is the only question we are called. upon to consider upon this appeal.

The negotiations for the alleged contracts were conducted by Horace L. Hubbell, president of the Hill & Hubbell Lumber Company, manager of the East Norwalk Lumber Company and vice-president of the Westport Lumber Company, the assignors of the plaintiff in this action, and acted as their agents in reference to the alleged contracts. March 15, 1899, Hubbell wrote the defendants, doing business as copartners under the name of the Wisconsin Lumber Company, inclosing a bill of lumber, and asking for a delivered price thereon to be delivered by boat as soon as canal opened. This, letter was received by defendants March 16, 1899, and March 20, 1899, defendants answered, inclosing prices as requested, and saying if Hubbell came their way before he purchased this stock they would like very much to have him call' on them. In response to this invitation to call, Hubbell, in April, 1899, visited the office of the defendants and had more or less talk with Frank Boutin, Jr., one of the defendants, about lumber. The papers were there prepared, which are claimed to constitute the notes or memoranda sufficient to satisfy the Statute of Frauds. .These papers were made up of bills of lumber, with prices carried out opposite the several items thereof, and a statement at the bottom of each of the terms of payment and the commissions to be credited to Hill & Hubbell. Lumber Company account. One paper had at its commencement the words “ Hill & Hubbell Lumber Co. j ” the other had at its commencement the words “ Westport Lumber Co.,” and down aways in the bill the words “East Norwalk Lumber Co.,” and the two papers were signed, at the bottom, each, by Wisconsin Lumber Company. Per F. Boutin, Jr., Manager. These papers were delivered to Hubbel and he took them away. Upon the trial the plaintiff was permitted to give much parol evidence as to the transactions between the parties when these papers were prepared, but at the close of the evidence the court -held that the papers were not sufficient to comply with the statute, and that parol evidence could not be used to aid the writings in making contracts valid under the statute. We think the court was correct in the decision made. The two letters of March, 1899, were merely a request for the quotation of prices and a compliance with such request. They did not purport to constitute a contract, but at most the reply by defendants was an offer to sell at the prices and on the terms therein specified, and would not amount to a contract under the statute unless accepted in writing, and no such acceptance was ever made. Hubbell was invited to call upon defendants before purchasing lumber elsewhere, and he did call on the occasion when the other two papers were made. There was then no acceptance in writing of the offer by defendants in their letter, but there were new negotiations and new bills of lumber with prices annexed prepared, but the difficulty is that these two papers made on that occasion in no way indicated that a sale or purchase had been made of the lumber. For all that appears in the papers themselves, they were merely offers to sell at the prices and upon the terms therein described, the same as defendant’s letter to Hubbell had been. The plaintiff sought to show by parol evidence that the parties agreed to consider these papers as valid contracts for the sale and delivery of the respective bills of lumber to the three companies who are plaintiff’s assignors ; but this was not. permissible. If these papers were designed merely as offers to sell and deliver, then there having been no acceptance of the offers in writing, there were no contracts. Whether they were designed by the parties in fact as offers or contracts to sell and deliver, could not be ascertained from the papers themselves, and, therefore, they could not be said to comply with the statute. Parol evidence must be made use of to indicate what the intention of the parties was, and that will not satisfy the statute. If the parties had intended to make the papers contracts for sale and delivery, in and by the terms of the papers themselves, they could easily have done so by saying one party “ bought of” the other, which is the common, ordinary way of doing business and making bills of sale. Nothing of tbit kind was in the papers, however.

The rule of law applicable here is that the writings, in order to satisfy the statute, must in and of themselves constitute the contracts, and parol evidence is not permissible to supply any defects in the written evidence. (Wilson v. Lewiston Mill Co., 150 N. Y. 314, 325, 326; Cooley v. Lobdell, 153 id. 596, 600.)

The papers in this case did not sufficiently comply with this rule so as to take them out of the statute.

The judgment and order appealed from should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  