
    Augustus D. Juilliard and Others, Appellants, v. Nathan Trokie and Others, Respondents.
    First Department,
    July 7, 1910.
    Contract—sale—Statute of Frauds—insufficient memorandum.
    Action for the breach of a contract of sale, the defendant setting up the Statute of Frauds as a defense. It appeared that the plaintiffs- sent tlie. defendant a memorandum setting forth tire term's of sale, to which the defendant replied in' writing, stating that the memorandum was erroneous, and requesting that it be changed and returned. The plaintiffs sent another memorandum, in which they offered to furnish a larger amount of goods than called for By the original order, and changed the terms of payment. This offer was not accepted in writing by the defendant, but, on the contrary, he wrote that the order was canceled.
    
      Held, that the minds of the parties never met as to the terms of the sale, and that there was no writing signed by the defendant binding under the Statute of Frauds.
    Such memorandum cannot be considered a contract for the sale of goods to be manufactured merely because it provided that the deliveries were to be proportioned to the production of the mills on whose account the goods were sold, if in fact the plaintiffs were not manufacturers.
    
      Appeal by the plaintiffs, Augustus D. Jnilliard and others, from a judgment of. the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 19th day of February, 1910, upon the dismissal of the complaint by direction of the court at the close of the plaintiffs’ case.on a trial at the New York Trial Term.
    E W. Tyler, for the appellants.
    
      J. Solon Einsohn, for the respondents.
   McLaughlin, J. :

The complaint alleges that on the 27th of August, 1907, the plaintiffs and the defendants entered into a contract by which the former agreed to sell and the latter to buy 100,000 yards of sheeting at four and three-quarters cents £i yard, deliveries to be made commencing April, 1908, 10,000.yards every two weeks, terms to be net ten days; that at the request of defendants the contract was thereafter modified by making the terms ten days from the end of éach month and the deliveries 15,000 yards on the fifteenth day of each month, commencing April 15, 1908; that the defendants have refused to accept the goods contracted for, to plaintiffs’ damage as shown by the bill of particulars, in the sum of $1,662. The defendants denied the making of the contract and set up as a defense the Statute of Frauds. Upon the trial the court held that no contract valid under the statute had been proven and dismissed the complaint at the close of plaintiffs’ case. Judgment was entered accordingly, from which plaintiffs appeal.

I am of the opinion that the evidence introduced at the trial did not establish a valid contract. The evidence consisted, jvrst, of a memorandum dated the 27th of August, 1907, which the plain tiffs sent to the defendants, setting forth the terms of the sale as alleged in the complaint. To this the defendants replied, in writing, on the third of September, as follows: “ Tour copy of order confirming order. left with you by our Hr. Trokie, who is at present out of town, received, We wrote him in regards to your terms on order which he claims an error. Terms made were 10 days E. O. M. [i. e. end of month]. Please change same and return to, Yours respectfully, Excelsior Pad Co.,” which was the defendants’ firm name. On' the nineteenth of September following the plaintiffs wrote the defendants, saying: “ As per writer’s conversation with you today, we agree to make shipment of 15,000 yards 6.00 sheeting, on or about the 15th of each month, beginning April 15th, 1908, with terms net ten days, from the end of the month on your contract $ 6091,” which was the number of the memorandum first sent.

These are the- letters upon which, as appears from the bill of particulars, the plaintiffs rely as written evidence of the contract: It further appears that on the 23d of December, 1907, defendants wrote plaintiffs that, “In accordance with the conversation our Mr. Trokie had with your Mr. Kelly last week, we herewith consider the optional order placed with you canceled.” The plaintiffs refused to recognize the contract canceled and after further correspondence, on the 4tli of April, 1908, sent the defendants an invoice for 15,531-J yards of the sheeting at four and three-quarter cents a yard. “ Terms net 10. days April 15th.” This the defendants returned, stating: “We countermanded this order last Dec.”

There is nothing in any of the writings or correspondence which shows that the minds of the parties ever met as to the terms of a contract. Indeed, the only writing signed by the defendants — the persons to be charged —- which in any way could be tortured into1 an agreement on their part, is the letter of September third. That states: “Your copy of order confirming order left with you by our Mr. Trokie, who is at present, out of town, received. We wrote him in regards to your terms on order which he claims an error. Terms made were 10 days, E«. O, M. Please change same and return.” Instead of this being an admission that there was a contract, it is a repudiation of one on the terms sent, and requesting a change. The change was never made, but a different proposition submitted. The letter submitting the second proposition was written some two weeks thereafter and states: “ As per writer’s conversation with you today, we agree to make shipment of 15,000 yards 6.00 sheeting, on or about the 15th of each month,” etc. This was a material alteration of the original agreement and it was not signed or acknowledged in any way by the defendants.

In Leach v. Weil (129 App. Div. 688) it was said: “ It is unnecessary to cite authority for the familiar and well-settled rule that the note or memorandum required by the Statute of Frauds must contain all of the terms of the contract and cannot be eked out by oral proof. * * * It does not suffice that the writing evidence a contract; it must embody the terms of the contract actually made. The writing relied upon in this case does not embody all of the terms of the contract actually made, hence such contract was void for not being evidenced as the statute requires.” ■ This statement is quite applicable to the present case. The only writing signed by the defendants,,admitting that it evidences a contract, does not show what were the terms of the contract upon which this action was brought. It will be remembered in the original memorandum which the plaintiffs sent, the sheeting was to be delivered 10,000 yards every two weeks, commencing in April, 1908, “ butsubject to change before 15th proximo, as to weekly quantity.” The-plaintiffs contend that the parties agreed orally to change the weekly quantities to 15,000 .yards on the fifteenth of each month, as set forth in their letter of September nineteenth, plaintiffs also agreeing to the change in time of payment. But, as appears from that letter, this change was not made “before 15th proximo” — i. e., the fifteenth of September — but “ as per writer’s conversation with you today.” Then, too, this letter was never assented to in writing by the defendants, and when it is considered in connection with the two letters which had preceded it, it is impossible to say that the minds of the parties ever met, or if so, what the terms of the contract were.

It is also urged that the contract was not within the Statute of Frauds since it was for the sale of goods to be manufactured. This suggestion is based upon a statement in the original memorandum that “if the production of the mill for whose account above contract is sold be curtailed by strikes * * * or by any unavoidable accident, the deliveries shall be proportioned to the production.” .This statement was of no importance because the plaintiffs were not manufacturers. It made no difference to the defendants where the plaintiffs procured:the sheeting; whether they had the same on hand when .the contract was made or thereafter obtained it. It was not a contract to manufacture.

I am of the Opinion that the judgment is right and should toe affirmed, with costs.

Ingraham, P. J., Laughlin, Scott and Dowling, JJ., concurred.

Judgment affirmed, with costs.  