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.$1,938 61 He was then in debt to an amount exceeding $3,500, which included, as its principal item, his own promissory note held by the Fallkill National Bank of Poughkeepsie, which note he had several times renewed. It was for the principal sum of $3,000, and with interest then amounted to the sum of $3,031.50, nearly twice the amount of his personal property, exclusive of his household effects. His real estate consisted of two parcels of real property in the city of Poughkeepsie, which the executors, since his death, have sold, and realized from such sale the sum of $13,031.44. The legatee of the third legacy,, Mary Spross, was his housekeeper and the wife of one of his nephews. The two institutions which were the legatees in the sixth and seventh clauses had long been objects of the testator's special interest. There was no material change in the condition of his property, real or personal, or of his indebtedness, between the making of the will and his death. These facts appear to me to clearly "preclude any possible inference that the testator did not realize" the fact that his personal estate was utterly insufficient to pay his indebtedness, let alone the legacies, and also “to preclude any possible inference that he may have expected and intended before his death to remove the difficulty”; i. e., to have created a sufficient personal estate to pay his debts and such legacies.
The court is, of course, reluctant to ascribe to the testator as a sensible person, the doing of an utterly vain and foolish thing. It is to be presumed that he intended that the legacies which he wrote in his will should have effect; and, as it must then have been clearly apparent to his mind that they could have effect only by being paid out of his estate generally, and not out of his personal property alone, it seems that such must be regarded as having been his intention, and that his will should be construed accordingly. The only difficulty in making such construction is found in the fact that the fourth clause of the will, which follows in order the second and third clauses giving the first and second legacies, charges the testator's real estate “with the payment of the foregoing bequests," and that the will contains no such express charge as to the other three legacies. I do not think, however, that that clause should be regarded as overcoming the clear inference, which the facts above recited compel, as to the testator's intent respecting the other three legacies. The proven facts as to the situation of the testator at that time demonstrate beyond the possibility of cavil that he must then have intended that all the legacies be paid out of his estate generally, or that the last three legacies should not be paid at all. The latter conclusion seems utterly unreasonable.
It should be noted, also, that the residuary clause gives, devises, and bequeaths the residuary estate "after paying the above bequests, indicating the intention that all of them should be paid. The will, therefore, must be construed as making the three legacies in question,
namely, those given in the fifth, sixth, and seventh clauses of the will, payable out of the testator's estate generally. Therefore they may now be paid out of the proceeds of the sale of the real estate.
Let a decision be prepared and submitted accordingly.
WAXELBAUM V. SCHLOSS et al.
(Supreme Court, Appellate Division, First Department. April 8, 1909.) 1. FRAUDS, STATUTE OF (8 81*)-CONTRACTS FOR SALE.
A contract for a sale of goods for more than $50 is void under the statute of frauds (Personal Property Law (Laws 1897, p. 510, c. 417] § 21), where there was no partial delivery, nor payment on the price, and the memorandum of sale was not signed by the sellers.
[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. § 140 ;
Dec. Dig. $ 81.*] 2. FRAUDS, STATUTE OF ($ 118*)-SUFFICIENCY OF WRITING.
An agreement within the statute of frauds may be embodied in different related papers signed by him to be charged, but the whole contract must be collectible from the writings; and hence a letter by a seller of goods, requesting the buyer to call "in reference to the goods you selected," is insufficient to sustain the contract.
[Ed. Note. For other cases, see Frauds, Statute of, Cent. Dig. 8 262;
Dec. Dig. § 118.*] 3. FRAUDS, STATUTE OF (8 84*)-SALES-MEMORANDA-SUFFICIENCY.
A writing stating that plaintiff requested defendants to make and consign to them certain goods, for which they agreed to pay in current funds, and reciting that all orders given to defendants' representatives were subject to acceptance by the firm, was not even an account of goods sold, as affecting its validity within the statute of frauds.
[Ed. Note.-For other cases, see Frauds, Statute of, Dec. Dig. 84.*] 4. SALES (8 23*)-ORDERS FOR GOODS-ACCEPTANCE.
A letter requesting plaintiff to call on defendants respecting goods se lected by plaintiff was not an acceptance of an order for the goods.
[Ed. Note.-For other cases, see Sales, Cent. Dig. 88 39 43; Dec. Dig.
f 23.*] 5. SALES (§ 23*)-ORDERS FOR GOODS-ACCEPTANCE.
Where the blank on which plaintiff ordered goods of defendants bore printed notice across its face that the order was subject to acceptance by the firm, plaintiff was bound to take notice thereof, and, defendants having refused to accept, the proposed purchase was terminated.
[Ed. Note.-For other cases, see Sales, Cent. Dig. 88 39 43; Dec. Dig. $ 23.*]
Appeal from Trial Term, New York County.
Action by Joseph Waxelbaum against Nathan Schloss and others. From a judgment for plaintiff, and from an order refusing a new trial, defendants appeal. Reversed, and new trial ordered.
Argued before PATTERSON, P. J., and LAUGHLIN, CLARKE, McLAUGHLIN, and HOUGHTON, JJ.
Daniel W. Blumenthal, for appellants.
HOUGHTON, J. The action is for damages for failing to deliver goods alleged to have been purchased by the plaintiff's assignor from the defendants. A firm of jobbers, known as the Waxelbaum Company, through its representative, selected from defendants' stock of goods at their salesrooms in New York City some 800 suits of clothing, and verbally agreed to purchase them at prices aggregating about $3,300. The defendants made a list of the goods by lot numbers and quantities on a blank form used by them. This blank form was headed "Schloss Bros. & Co. of Baltimore and New York," and, in substance, was as follows: "Waxelbaum Co., of Macon, Ga., request that you make and consign" to them “the garments enumerated below,” which "they agree to pay for in Baltimore in current funds." Then follows a list of the suits and sizes, with a statement that the price of each suit is $5. Across the face of this paper appeared the words, "All orders given to representatives or members of the firm are subject to acceptance by the Executive Dept. at Baltimore," at which place defendants' factory was located. This paper was not signed by sellers, these defendants; but a duplicate of it was delivered to the proposed purchaser. The order was submitted to the executive department of the defendants at Baltimore, and their New York representative was instructed not to fill the order unless the “Schloss & Co.” labels were removed from the garments. The Waxelbaum Company refused to accede to this condition, and demanded delivery of the goods with the label on, and on refusel assigned their claim for damages to the plaintiff, who brought action thereon.
The defendants by their answer pleaded the statute of frauds, as well as denied that any bargain of sale was made, pleading that the order was conditional upon acceptance by the Baltimore office, which had not been given. The price of the goods claimed to have been purchased was more than $50, and there was no part delivery; nor was any portion of the purchase price paid. Even if the contract of sale was absolute, and not conditional upon acceptance by the Baltimore office, it was void under the statute of frauds, now embodied in section 21 of the personal property law (Laws 1897, p. 510, c. 417), because it was not subscribed by the defendants. The plaintiff claims that the following letter, written and signed by the defendants a day or two after the delivery of a copy of the unsigned order, satisfies the statute and constitutes a sufficient signing. The letter is as follows:
“Messrs. Waxelbaum & Co.-Gentlemen: Please call at our New York office on receipt of this letter in reference to the goods you selected.”
The agreement required by the statute of frauds may be embodied in different papers having relation to each other, signed by the party to be charged (Peck v. Vandemark, 99 N. Y. 30, 1 N. E. 41); but the whole contract must be collected from the writings (Wilson v. Lewiston Mill Co., 150 N. Y. 314, 44 N. E. 959, 55 Am. St. Rep. 680). The signed letter, taken in connection with the unsigned order, falls very far short of making a complete agreement to sell. The unsigned order is not even an account of goods sold. It is simply a statement that the Waxelbaum Company request consignment to them of the enumerated goods at the specified price. There is nothing in the sign
ed letter tending to show that the defendants confirmed the sale, or the order, or that they acceded to the request to consign, or that they bound themselves to ship or deliver. The letter is simply a request to call in reference to the goods which had been talked about, the kinds and quantity of which a memorandum had been made. In no sense was the letter effectual to give the order the effect of an absolute agreement to sell the goods enumerated. In Coe v. Tough, 116 N. Y. 273, 22 N. E. 550, the signed letter accompanied the unsigned list of property described as having been bought, and it was held that the requirements of the statute were not complied with.
Besides, the plaintiff's assignor was given notice upon the face of the order, by printing in different ink, that it was subject to acceptance by the home office of the defendants at Baltimore. This was a part of whatever contract there was, and could not be ignored. The executive department of defendant refused to sanction the sale, and that was the end of the proposed purchase. The learned trial court was in error in refusing to grant the motion to dismiss the complaint.
The judgment and order must be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.
OPPENHEIMER V. BARNETT et al.
(Supreme Court, Appellate Division, First Department. April 8, 1909.) BROKERS (8 74*)-COMMISSIONS-LIABILITY FOR.
Purchasers of land were under no legal obligation to the owner's broker, and could so arrange the purchase as to permit another broker to procure the commission, though the owner's broker drew their attention to the property, and he has no cause of action against the other broker; his remedy being against his principal, if he was the procuring cause of the sale.
[Ed. Note.-For other cases, see Brokers, Cent. Dig. & 62; Dec. Dig. ģ 74.*) Appeal from Special Term, New York County.
Action by Henry Oppenheimer against Mary Barnett and others. Judgment for defendants, and plaintiff appeals. Affirmed.
Argued before PATTERSON, P. J., and LAUGHLIN, CLARKE, McLAUGHLIN, and HOUGHTON, JJ.
Edward A. Alexander, for appellant.
MCLAUGHLIN, J. This action was brought to recover brokerage commissions alleged to have been earned by the plaintiff in the sale of real estate and obtained by the defendants from one Lowenthal, the owner, by fraud and deceit. The fraud and deceit are alleged to have consisted in inducing Lowenthal to believe that one Gregory, and not the plaintiff, had been the procuring cause of the sale, by reason of which fact Lowenthal paid Gregory the commissions. The complaint alleged that Lowenthal employed the plaintiff as his broker to sell the real estate in question and agreed to give him a commission of
1 per cent. for so doing; that the plaintiff, pursuant to such employment, offered the property to the defendants Barnett and Blumenthal, and they, through his efforts, purchased the same for $69,500; that thereafter the defendants, for the purpose of cheating and defrauding the plaintiff, and obtaining the payment of such commissions, falsely, and fraudulently represented to Lowenthal that the defendant Gregory was the broker who procured the sale and he was entitled to the commissions; that Lowenthal, relying upon such representations, and believing them to be true, paid to Gregory the sum of $695, the commissions which had, in fact, been earned by the plaintiff. The answer put in issue the material allegations of the complaint..
At the trial it appeared that some time prior to May, 1905, Lowenthal was the owner of certain real estate situate on Second avenue in the city of New York, and he authorized the plaintiff, a real estate broker, to sell the same for $70,000, and agreed if he did so to pay him a commission of 1 per cent.; that in pursuance of the employment the plaintiff submitted an offer, not from the defendants, or either of them, of $68,500, which was refused; that subsequent to the refusal the plaintiff called on the defendant Barnett and told her that the real estate in question was for sale and could be purchased for $70,000; that $68,500 had been offered and refused, and he asked her to make an offer for it, which she declined to do, saying she would look at the property the next day; that on the following day he asked her over the telephone if she had looked at the property, and she replied that she had not, but intended to do so; that, not hearing from her, on the following Wednesday he again telephoned, and she then asked him what was the lowest price for which the property could be purchased, and he replied, “I told you the price; $68,500 was offered" and refused; that he again asked her to make an offer, which she declined to do; that a day or so later he again telephoned her, and asked if she had seen the property, and she said she had not, and asked him, “Don't you think you can buy it for less?" and he answered, “Let me submit offer,” which she did not do; that the plaintiff heard nothing further until the following Monday, when Lowenthal's wife told him there had been somebody there on Sunday inquiring about the property, and the plaintiff thereupon said, "I am very sorry, but I have got people very much interested, and I do not know why they do not let me make an offer; I am expecting to hear from them during the day;" that immediately thereafter the plaintiff telephoned to the defendant Barnett, the communication being answered by the defendant Blumenthal, and the plaintiff said to her that an offer had been made for the property, and asked if she wanted it to make an offer, saying that "If you will only let me make an offer, I will try and stop it,” to which she said, "I cannot help it if the property is sold;" that the following morning he telephoned the owner, Lowenthal, who informed him he intended to sell the property that day at 2 o'clock unless plaintiff could sell it, and the property was sold at the time stated to the defendants Barnett and Blumenthal, the defendant Gregory acting as the broker, who represented, to which both of the other defendants agreed, that he had been the procuring cause