
    William W. Brauer, Appellant and Respondent, v. The Oceanic Steam Navigation Company, Limited, Respondent and Appellant.
    
      Denial of a motion for Oj nonsuit, how reviewed— contract by exchange of telegrams contemplating the execution of a final written agreement — enforcible although no writing is executed.
    
    A motion for a nonsuit made during the course of a jury trial is a part of the trial, and the correctness of the disposition of such motion must he reviewed hy an appeal from the judgment or upon a motion for a new trial.
    There is no practice which sanctions the entry of a separate order disposing of the motion for a nonsuit and the taking of an appeal therefrom.
    Where, by means of telegrams exchanged between two parties, a definite proposition containing all the requirements of a complete contract is made by one and accepted by the other, with the understanding that the agreement will be expressed in a formal writing, the failure to execute the formal writing does not affect the validity of the contract.
    The foregoing rule does not apply where part only of the terms of a contract are agreed upon and the parties intend that such terms and others not yet agreed upon shall be expressed in one written agreement.
    Laughlin, J., dissented.
    Appeal by the plaintiff, William W. Brauer, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 18th day of July, 1902, setting aside a verdict theretofore rendered in favor of the plaintiff and granting a new trial of the action.
    Also an appeal by the defendant, The Oceanic Steam Navigation Company, Limited, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 6th day of September, 1902, denying the defendant’s motion for a nonsuit made during the course of the trial.
    
      Ira D. Warren, for the plaintiff.
    
      Everett P. Wheeler, for the defendant.
   Patterson, J.:

These appeals are, first, by the defendant from an order entered as a separate order, denying its motion for a nonsuit made during the course of the trial, and, second, by the plaintiff from an order setting aside a verdict of a jury in his favor in an action brought to recover damages for the alleged violation of a contract which he claims had been entered into between him and the defendant.

The appeal from the first-mentioned- order must be dismissed, with costs. We know of no practice which authorizes the entry of' such an order. The disposition of a motion made for a nonsuit during the progress of a trial is a part of the trial, and the correctness of the ruling of the court in refusing or granting a nonsuit, must be brought up for review by appeal from the judgment or upon a motion for a new trial.

The order setting aside the verdict of the jury must be affirmed for the reason stated in the opinion of the trial judge in granting the defendant’s motion for a new trial, namely, that the proof failed to show that a completed contract between the parties was entered into. The learned trial judge submitted to the jury two questions which were answered, and a general verdict was rendered in favor of the plaintiff. That method of submission does not militate against the power of the court to set aside a verdict for the reason assigned by the trial judge. That the plaintiff and the defendant, through its agent, Mr. Kersey, entered into negotiations for a contract by which the plaintiff sought to secure space in the steamships of the defendant for the transportation of cattle across the Atlantic. ocean, and that those negotiations were continued without result up to sometime prior to October 25, 1897, is conceded by both parties. The negotiations anterior to that date related to some, but not all, of the details of the contract. According to the plaintiff’s own testimony he saw Mr. Kersey, the defendant’s agent, and stated that he wanted to negotiate with reference to cattle space on the defendant’s steamships; that he knew that that space was then controlled by the firm of Schwarzchild & Sulzberger; that Kersey stated that he must first see if that firm wanted to take the space and if they did not want it he would be glad to negotiate with the plaintiff. The plaintiff saw Mr. Kersey again a few days afterwards when Kersey said he was prepared to negotiate for the space. Thereupon certain matters were discussed between Kersey and the plaintiff, Kersey saying that he had six or seven vessels running, making weekly service, the number of which the plaintiff would not swear to, but the plaintiff said he wanted all the boats or none, to which Kersey responded that would be all right. The plaintiff says that “We discussed the particulars; he told me that their usual custom now was to insure their cattle ; I asked him for how much, and he said $75 per head. I told him that that was quite satisfactory ; he said that that, rate would include the insurance; he said that the demurrage would be 80 pounds, the usual form of cont/ract to he used ; he asked if Williams' contract was to he used, and I said no, that of my own brokers, 80 pounds per day, if they delayed our cattle, if their boat was not ready for our cattle when we were ready to deliver, we were to receive from them 50 cents per head per day for the detention of our cattle; and he further stated that they would not pay any brokerage, and that was the only thing that there was a hitch on at all; but we hadn’t agreed on any rate; then I went back to the hotel, and I told Mr. Kersey that I was going to Chicago.”

Thus far, it appears from the plaintiff’s own testimony that no contract was agreed on. Some terms were discussed, but neither party was bound by that discussion, and it is obvious that neither intended to be bound by it and that a writing would be required to make a binding obligation. Nothing was agreed upon as to the actual maximum or minimum numbers of cattle to be shipped, or as to shipments by the passenger steamer Cymric, or as to dead freight. But the plaintiff’s contention is that a binding contract was made by a telegraphic correspondence which ensued between the plaintiff and Kersey. That correspondence is as follows:

“New York, Oct. 25th, 1897.
“ W. W. Brauer,
“ Auditorium Annex, Chicago :
“ Am ready to close all White Star steamers carrying cattle December first, 1897, to November 30th, 1898, inclusive 42/6 insured. Maximum numbers our call subject to your giving satisfactory guarantee, Liverpool, November 15th, but decline positively pay demurrage subject to reply by noon to-morrow, Tuesday.
“H. MAITLAND KERSEY.”
“ Dated Chicago, III., Oct. 26.
“ To H. Maitland Kersey,
“ White Star Line, Broadway:
“ Accept your proposition,' confirm closing your boats for one - year.
“BRAUER.”
“ Dated New York, Oct. 26.
“ To W. W. Brauer,
“ Aud. Annex:
“ Message received. Consider space closed.
“H. MAITLAND KERSEY.”
“ Dated Chicago, Ills., 27.
“ To H. Maitland Kersey,
“ White Star Line, New York:
“ Leaving to-morrow for York via Baltimore, will call for contract Saturday morning, probably sailing .Lucania.
“ (Signed) BRAUER.”

This telegraphic correspondence does not constitute a final contract between the parties. Kersey informed the plaintiff by the telegram dated October twenty-fifth that he was ready to close a contract for the White Star steamers carryvng cattle' at a price of forty-two shillings and six pence, with the right to the defendant to fix the maximum number of cattle to be carried. Brauer’s answer is an acceptance of the proposition, and, so far as the price and the other matters referred to in Kersey’s telegram are concerned, there was an acceptance of those particular terms. Kersey’s dispatch of October twenty-sixth undoubtedly shows his understanding that Brauer had agreed to take the space at a certain price, with the maximum numbers to be fixed by the defendant, subject to a satisfactory guaranty being given by the plaintiff and without liability to the defendant to pay brokerage, but that was not all of the contract contemplated by the parties. Notwithstanding that telegram, the matter was still in fieri. Both parties contemplated that the whole contract between them should be finally reduced to writing as the evidence of its terms, and that is shown by the last of the series of telegrams above quoted which Brauer sent from Chicago to Kersey, in which he states that he would call upon Kersey for the contract.

We cannot read into these telegrams all the detail referred to by the plaintiff as having been matters of discussion with Kersey before the plaintiff went to Chicago, and it is quite plain, from the action of the plaintiff on his return from that city, that he understood that a final binding contract had not been made, and that the telegrams related only to those terms which were specifically mentioned in the first telegram sent by Kersey to the plaintiff at Chicago. According to the plaintiff’s own testimony, a written contract was to be executed, not WiUiami contract, as he said, but his own brokers’ contract, and when, on his return from Chicago, he applied to Kersey for a contract the subject of all the terms was yet unsettled. While the plaintiff says that he insisted upon the contract made by the telegrams, it is simply impossible to believe that he ever supposed that a contract of such a character, with so much detail, with so many matters to be covered fixing rights and obligations and liabilities, was simply to be left in the air, the four telegrams constituting a complete contract, while all the other matters of detail talked over in antecedent negotiations were to rest merely in an oral agreement. Unquestionably, it is a rule of law that a stipulation to reduce a valid contract to some other form does not affect its validity, and if the contract is in any form the stipulation may not be used by either of the parties for the purpose of imposing upon the other different obligations, or of evading the performance of any of the provisions of the contract, and, as was held in Sanders v. P. B. F. Co. (144 N. Y. 209), the rule applies where, by means of letters and telegrams exchanged between parties, a definite proposition containing all the requirements of a completed contract is made by one and accepted by the other, with the understanding that the agreement will be expressed in a formal writing. To the same effect is Stilwell v. Ocean, Steamship Co. (5 App. Div. 212); Wilbur v. Collin (4 id. 419); Crossett v. Carleton (23 id. 366); Canda, v. Wick (100 N. Y. 127). Those were cases in which the whole contract with all its material terms could be spelled out from, telegrams, correspondence or writings, or, as in Pratt v. Hudson River R. R. Co. (21 N. Y. 307), from an advertisement for bids and proposals made in writing pursuant to that advertisement. In the present case, a great mass of material detail would remain only in the memories of the negotiating parties, and all the terms were not settled.

The case is, therefore, one in which the feature is presented of negotiations for an, agreement, some of the terms of which are agreed upon, but others of which still remain unsettled. Those agreed upon are partly in writing and partly oral, but both parties intended that the whole agreement, both as to the settled terms and those not yet agreed upon, should be compacted and put together in one writing which should be executed and delivered before it became obligatory upon either.

That consideration, we think, takes this out of the rule laid down in the cases above cited. We do not intend to decide, that an oral agreement, complete and distinct in all its terms, and not affected by the Statute of Frauds, which the parties anticipate shall be reduced to writing, is not enforcible merely because of the omission of the formality of reducing it to writing. But that is not this case.

We think the action of the trial judge in setting aside the verdict was right.

The appeal from the order denying motion for nonsuit is dismissed, with costs, and the order setting aside the verdict is affirmed, with costs.

Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred ; Laughlin, J., dissented.

Appeal from • order denying motion for nonsuit dismissed, with costs, and order setting aside verdict affirmed, with costs.  