
    Paul Gerli and Herman Cahm, Doing Business as Paul Gerli & Company, Appellants, v. Louis Metzger & Company, Respondent.
    (Supreme Court, Appellate Term,
    June, 1906.)
    Frauds, Statute of — Sales of goods — Goods to be manufactured — When not a sale.
    New trial — Grounds — Verdict or findings contrary to evidence — Weight of evidence.
    Plaintiffs accepted two successive orders given- by defendant to manufacture for it out of raw silk 2,000 pounds of an article known as “tussah” at an agreed price, deliveries to be “made as quickly as possible.” Defendant accepted and paid for 700 pounds and, two days before the last delivery and without having made any complaint, it canceled all orders and rejected and returned an invoice for additional raw silk sent by plaintiffs, who insisted upon the fulfillment of the contract while defendant refused to accept any more goods. In an action for damages for breach of contract, where the uncontradicted evidence showed that deliveries were made according to the condition of the first order, the preponderance of proof as to the second order, which defendant denied giving, was with plaintiffs and there was proof of damages, held, that in no aspect was a judgment for defendant justified.
    As the conversion of the raw silk into “ tussah ” required “ winding, doubling and twisting ”, the contract was for work, labor and services and not for goods sold, and was enforceable, though oral.
    
      Appeal by the plaintiffs from a judgment of the Municipal Court of the city of New York, eleventh district, borough of Manhattan, rendered in favor of the defendant.
    Michael H. Harris, for appellants.
    Platzek & Stroock, for respondent.
   Leveetbitt, J.

Under no aspect of this case can the judgment rendered in favor of the defendant be justified.

The action was brought to recover damages for the breach of two alleged contracts entered into, respectively, on the 23d day of January and the 7th day of February, 1905. The making and the terms of the earlier contract are not in dispute. It was in the form of an accepted order given by the defendant corporation to the plaintiffs to manufacture for it, out of raw silk, 1,000 pounds of an article known as “ tussah ” at the agreed price of two dollars and seventy-five cents a pound, less a discount of seven per cent., deliveries to he “ made as quickly as possible.” The conversion of the raw silk into “ tussah ” required winding, doubling, and twisting.” The plaintiffs claim that the later contract was a duplicate of the first; hut the defendant denies absolutely that any second contract was made.

Between the 4th day of February and the 13th day of March, 1905, the plaintiffs made a number of deliveries of “ tussah,” aggregating about 700 pounds, which the defendant accepted and paid for. Two days after the last delivery and without having made any prior complaint, the defendant wrote to the plaintiffs to “ cancel all orders ” for silk. At about the same time the plaintiffs sent to the defendant an invoice for 164 pounds additional; this was rejected and returned. Correspondence followed, the plaintiffs insisting upon the fulfillment of the contract, the defendant persisting in its refusal to accept any more goods. Finally the plaintiffs notified the defendant that they would sell the undelivered 1,300 pounds for its account and hold it for any deficiency. The sale was made and the amount realized was $391.95 less than would have resulted under the contracts. The plaintiffs brought this action to recover that sum as the damages sustained by them by reason of the breach of the contract. As to the first order, the defendant resisted liability on the ground of slow deliveries,” and as to the second, on the ground that it was not made and, if made, was void under the Statute of Frauds, because not reduced to writing.

The proof adduced on the trial clearly established the plaintiffs’ right to recover the damages suffered by reason of the defendant’s refusal to accept the 300 pounds necessary to complete the first order. The plaintiffs introduced evidence showing that they made deliveries as quickly as possible. That was practically uncontradicted, as the defendant’s testimony on the subject was limited to the statement that the deliveries were “ very slow,” and there was no intimation that the deliveries could have been made more quickly. Thus the defendant utterly failed to meet the plaintiffs’ claim based upon breach of the first order.

The plaintiffs asserted and the defendant denied the giving of the second. There was oath against oath. That, of course, gave rise to a disputed question of fact. The preponderance of proof was, however, with the plaintiffs, as their assertion was supported by the writings that passed between the parties. The defendant, in its letters, repeatedly mentioned the cancellation of orders,” an expression inconsistent with the existence of only a single order, an inconsistency for which no explanation was offered. Upon the new trial which must be had, the defendant may be able to reconcile its present contention with the expressions contained in its letters. The Statute of Frauds is inapplicable. The contract in controversy was for work, labor, and services and not for goods sold and hence is enforceable, though oral.

Gildebsleeve and McCall, JJ., concur.

Judgment reversed and new trial ordered, with coats to appellants to abide event.  