
    William H. Rutty, Resp’t, v. The Consolidated Fruit Jar Co., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1890.)
    
    1. Sale—Statute of frauds.
    Although the correspondence by which the parties enter into an agreement for the sale of goods leaves some of the particulars in doubt, acts of the parties which show that it was contemplated that the goods should be manufactured by the vendor take the agreement out of the statute of frauds.
    .3. Same—Abandonment of contract.
    Plaintiff subsequently gave orders for other goods and the machines for making the same, but frequently communicated his wish that the first agreement should be fulfilled. Held, that no abandonment of the first contract was shown.
    
      Appeal from judgment entered on verdict and from order denying defendant’s motion for a new trial.
    
      Levi A. Fuller, for app’lt; JolxnF. Fkistis, for resp’t.
   Bartlett, J.

We think this case was properly disposed of at the circuit. The action was brought to recover damages for the alleged breach of a contract whereby the defendant undertook to furnish to the plaintiff 10.000 gross of glove clasps at twenty-nine cents a gross, tobe delivered at the rate of 500 gross a week from the 1st day of January, 1884. The proof clearly established that the parties entered into such an agreement by correspondence ; and although the letters might leave some of the particulars in doubt, these are made clear by the practical construction subsequently given to the contract by the acts of the plaintiff and the defendant. These acts leave no doubt that the parties contemplated that the goods should be manufactured by the vendor, and take the agreement out of the operation of the statute of frauds. Millar v. Fiizgibbons, 9 Daly, 505; Joy v. Schloss, 12 id., 533. They also show that the place of delivery was intended to be New York. The defendant insisted at the circuit, and argues here, that the correspondence which had been mentioned did not form a completed contract, for the reason that in accepting the plaintiff’s written offer he added the words, “ Terms cash, as stated in our interview.” The learned trial judge held, however, and we think correctly, that the subsequent letters of the plaintiff which" were put in evidence proved an acceptance of this modification, if it was a modification.

The defendant delivered to the plaintiff only 677 gross of the kind of glove clasps mentioned in the contract. The plaintiff ordered another sort of clasps and also machines for making clasps from the defendant, and it is clear from the conduct of the parties that the contract upon which this suit is based was modified so far as the time for the delivery of the goods was concerned; but the proof does not sustain the defendant’s position that the plaintiff abandoned the agreement and relinquished his rights thereunder by the orders which he gave for the manufacture of other articles than those embraced in the contract. On the contrary, the evidence of his desire that the Consolidated Fruit Company should fulfill the agreement and of the frequent communication of that wish to the secretary of the company, is clear, full and convincing.

In April, 1885, the defendant refused to furnish any more clasps to the plaintiff. The trial judge instructed the jury that a valid contract to manufacture and sell ten thousand gross of glove clasps existed, and had been broken by the defendant, and that the plaintiff was entitled to recover just what he lost by reason of the date specified. No exception was taken to the rule as to the measure of damages which was laid down in the charge; and hence the amount of the verdict is not assailed in the argument of the learned counsel for the appellant, who relies upon the proposition that the proof failed to establish the existence of a contract which could be the basis of any verdict at all against his client. In this view we are unable to concur. We have considered all the points made in the brief, and find no sufficient ground for disturbing the judgment, which must therefore be affirmed, with costs.

Yak Brukt, P. J., and Barrett, J., concur.  