Van Woert v. . Albany Susquehanna R.R. Co. , 1876 N.Y. LEXIS 431 ( 1876 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The jury were authorized to find, and we must assume that they did find, that there was a parol contract for the sale of wood, by which the defendant agreed to purchase and take of the plaintiff 1,000 cords of wood, or so much of that quantity as the plaintiff could cut and deliver, and pay for the same three dollars and fifty cents per cord for hard wood and three dollars per cord for soft wood; and the plaintiff agreed to deliver the whole, or so much of the 1,000 cords as he could cut and deliver.

We will assume, as most favorable to the appellant, that that was not a contract for work and labor, but one for the sale of the wood; and as there was no compliance with the statutes of frauds, that it was void when made.

There was subsequently a delivery of wood, and the judge submitted the evidence to the jury for them to find whether such delivery was upon and in pursuance of the prior contract; and as there was sufficient evidence authorizing such a finding, we must assume that they found that the subsequent delivery was upon the contract. Hence such delivery answered the requirement of the statute of frauds and made the contract of sale valid. (McKnight v. Dunlop, 5 N.Y., 537; Thompson v. Mink, 2 Keyes, 86; Bordwell v. O'Keefe, 32 Barb., 434; Bradley v.Wheeler, 4 Rob., 18.)

This is not the case of a contract not to be performed within a year. It was not such that by its terms it could not be performed within a year, but it might have been, and, therefore, was not void. (Lockwood v. Barnes, 3 Hill, 128;Artcher v. Zeh, 5 id., 200; Baptist Church v. InsuranceCo., 19 N.Y., 307.)

This was a contract binding upon both parties after the partial delivery. The plaintiff was bound to cut and deliver as much as he could up to 1,000 cords, and was bound to use reasonable efforts to perform his part of the contract; and the defendant was bound to take and pay for the wood thus delivered. Hence, there was mutuality in the contract.

The contract, as proved, was not so indefinite as to be void. There was no particular time mentioned within which the wood was all to be delivered. But the law in such a case gives the vendor a reasonable time, and that is sufficiently definite as to time. The quantity was limited to 1,000 cords, and the vendor was obliged to deliver all or so much of this as he could, and that was sufficiently definite and certain as to quantity.

We have carefully considered all of defendant's exceptions and find none of them well taken.

The opinion at General Term is so full and satisfactory that a further description of the case here is unimportant.

The judgment must be affirmed.

All concur; ALLEN, J., not sitting.

Judgment affirmed.