
    The Fresno Home Packing Company, Respondent, v. Turle & Skidmore, Appellant.
    (Supreme Court, Appellate Term,
    July, 1908.)
    Appeal — Review — Review of questions of fact — On • appeal from Marine Court or City Court of New York.
    Evidence—‘Relevancy: Circumstances tending to make proposition probable: Intent, motive or understanding — Operation of witness’ mind.
    Foreign corporations — Recognition, regulation and status — What is carrying on business.
    Frauds, Statute of — Pleading, evidence and trial — Pleading statute as a defense — Necessity.
    Sales — Remedies of seller —Action for price —Admissibility of evidence.
    Where a written contract for the purchase of two car-loads of raisins was modified by a parol agreement for the purchase and delivery of but one car, it is competent, in an action for the breach of the oral agreement, to show, as evidence of a consideration moving from the defendant for his new promise, that, at the time of the modification of the written contract, the raisin market was rapidly declining.
    A question to defendant’s treasurer to “ explain why ” he kept the papers relating to the contract from October 15 to November 15 and sent them back together with notice of the arrival of the goods on November 17 was subject to the objection that it called for what was in the witness’ mind.
    An appellate court will not interfere with the determination of a jury upon a question of fact where no preponderance of the testimony favors the appellant.
    The statutory ban against the maintenance in this State by foreign corporations of actions on contract is applicable only to such as have places of business and are carrying on or pursuing business within this State; and a California corporation not authorized to do business in this State may maintain an action here for breach of a contract of sale made through a local broker by writings made or approved in California.
    The defendant not having pleaded the Statute of Frauds could not object that the modification of the written contract by parol was invalid under said statute.
    Appeal by the defendant from a judgment of the City Oourt of the city of New York, rendered in favor of the plaintiff.
    
      H. & J. J. Lesser, for appellant.
    Benno Lewinson, for respondent.
   MacLean, J.

In this interesting commercial case, interesting in the relative rarity of the submission of commercial controversies to the courts in this commercial town, the learned presiding justice carefully limited the jury to the consideration of the sole issue of fact, to determination of whether, by a modification not in writing of an agreement in writing theretofore obtaining between the parties, the plaintiff and the defendant sold and bought a car-load of raisins of October shipment, 1906, of a certain quantity and at a certain price. The verdict was for the plaintiff; and from the judgment entered thereon the defendant appeals, contending that the verdict was against the weight of evidence; that the plaintiff was not competent to bring this action, because it had not complied with the requirements of the statute authorizing a foreign corporation to do business in this State and because the original agreement being for the sale of merchandise of a greater price than fifty dollars was, within the Statute of Frauds, valid only if in writing and could not be modified by parol.

On June 7, 1907, the plaintiff, a Californian corporation, not authorized to do business in this State, through a local broker, by writings approved or made in California, sold, and the defendant company, an incorporation of this State, bought, two car-loads of raisins, each to contain 750' cases, fifty pounds to a case, at- six and three-fourths cents per pound f. o. b. common shipping, point, California, and to be of October shipment.

On October second, the plaintiff tendered a car of raisins of September shipment, containing 831 cases of forty-five pounds each. This the defendant rejected. Thereupon, according to the testimony of the broker, contradicted categorically and circumstantially by the defendant’s treasurer, after negotiations in which one side asserted a desire to fix it up amicably and the other a purpose to do what was fair, the broker proposed that the plaintiff cancel one car-load and not stand upon its right to- deliver hoth, and the defendant’s treasurer said he would take the second car when it arrived. There was a decided decline in the market at that time. On October sixteenth came the invoice for the second car, with particulars of description, car number, route, dates and terms, and notice of drawing, as per duplicate draft, for the proceeds, $2,485.31. The papers were turned over to the defendant which seems, also, on the seventeenth, to have received notice from the First National Bank of the presentation of the original draft. Nothing else occurred till November fifteenth, when there came with the freight bill of $420 a notice of the arrival of the raisins and that they were ready for delivery at pier 25 N. R. Having received this also, the defendant returned the papers, including the duplicate draft, notice and invoice, to the broker. Counter returns, demands, refusals, followed; and then, with observance of the customary formalities, the raisins were sold at auction at five cents, realizing $1,852.85. So this action is for the difference between the invoice price, plus the freight hill, and the amount realized, or $1,022.46, with interest from October 17, 1907, wherefore, with costs, amounting in all to $1,123.82, is the judgment sought to be reversed.

Only two exceptions, both untenable, were taken by the defendant to rulings on evidence. One was to overruling an objection, as immaterial, to a question about the course of the market and which brought the material information that it was declining rapidly at that time, and so supplied evidence of a consideration, moving the defendant for the new promise to take one in lieu of two cars. Indeed, counsel for the defendant asked the same question of, and elicited the same information from, the plaintiff’s witness on the cross and of and from his own witness on the direct; hut for the purpose of making it appear improbable that the defendant’s officer should, on such a market, agree to take one car when, as counsel would have it, the defendant was not under obligation to take either two or one. The other exception was to the exclusion, proper enough, on an objection to what was in the witness’ mind, of a question asking the treasurer to explain why ” he kept the papers from October fifteenth

to November fifteenth and sent them back altogether with the notice of arrival on the seventeenth

Thus, submitted upon evidence, documentary and oral, scarcely questioned, with no preponderance favoring the appellant appearing, the verdict resting upon the credence given by the jurymen who saw the original papers and had in view the witnesses, this court will not interfere with the determination of fact.

Although formed and existing under the laws of another State of the Union and so here called foreign, the plaintiff is not for that, as urged, to be turned out of court. The statutory ban against maintenance in this State by foreign corporations of actions on contracts falls only on such as do business in this State (Gen. Corp. Law, § 15) which, as indicated in succeeding sections (§§ 16, 16a), are such as have places of business and are carrying on or pursuing business or objects in the State’s territory. This appears pretty plainly in the act itself, and it has been so held in a cause having some similarity with that at bar. St. Albans Beef Co. v. Aldridge, 112 App. Dir. 803.

Not having so pleaded, it may not now be objected by the defendant that the modification by parol of the contract in writing was invalid within the Statute of Frauds. As shown in the cases cited by him, the law was laid down as the appellant’s counsel contends, by the court of last resort in this State in 1884 (Hill v. Blake, 97 N. Y. 216), and even in 1890 (Clark v. Fey, 121 id. 470), in neither of which, as appears from examination of the original cases on appeal, was there mention in the pleadings of the Statute of Frauds. But the same high court has since (1893) pronounced it to be a general rule of universal application that the Statutes of Frauds, of Limitations, against Usury and against Betting and Gaming are not available to a party unless specially pleaded. Crane v. Powell, 139 N. Y. 379, 388.

That rule, respected, disposes of the chief question of law in this case. The modification, as it was called on the trial, of the contract in writing, found by the jury to have been made, was a new contract of sale (121 N. Y. 476), made by parol, as may be any contract not immoral or otherwise illicit, and so was provable by word of mouth, unless such evidence were forefended by pleading the statute, which the courts are now to take as if phrased, as is and for 230 odd years has been phrased, the English statute, copied and conservatively kept by certain States of the Union, e. g., Massachusetts.

Fact it is that two years after the enunciation of the rule here to be followed it was declared by the chief judge of the same high court (Thomson v. Poor, 147 N. Y. 402, 408), all the judges concurring: If we were now required to decide the question whether a contract in writing within the Statute of Frauds can be altered * * * by a subsequent oral executory agreement made between the parties upon sufficient consideration, we should find the question under the authorities involved in distressing perplexity.” Distressing to whom, the salaried judges, the paid lawyers, the taxed public, the unpedantic litigants ? Our statute literally pronounces such an agreement as is here to be upheld void. Our courts call it good, if only the statements between man and man be not precluded by a plea. Thus the merchant, if he buy the book of the law and peruse the bewildering mass of tomes of its juridical exposition, may not learn for himself, but remain in perplexity, as to the law of the land applicable to the common, commercial transaction of a sale of merchandise.

The judgment should be affirmed.

Gildersleeve, J., concurs.

Seabury, J. (concurring).

The attack which the appellant makes upon the judgment entered upon the verdict of the jury in favor of the plaintiff is without merit. The objection that the original contract was within the Statute of Frauds and not being evidenced by a writing is void is completely answered by the fact that the Statute of Frauds was not pleaded. Crane v. Powell, 139 N. Y. 379. The evidence as to whether there was a modification of the contract was the subject of conflicting testimony, and the proof sustains the finding of. the jury. Both the exceptions upon which the appellant relies are clearly worthless. The objection that the plaintiff has not complied with section 15 of the General Corporation Law cannot avail the appellant, as there is nothing in the records before us to show that the plaintiff did business in this State. St. Albans Beef Co. v. Aldridge, 112 App. Div. 803.

The judgment should be affirmed, with costs.

Judgment affirmed, with costs.  