F. Kieser & Son Co. v. Hallock

Van Kirk, J.:

The contract of sale was oral. The value of the meal was more than fifty dollars; no part of it was accepted and received by defendant; no part of the purchase price was paid; and no written memorandum was signed by the plaintiff. The defendant has pleaded the Statute of Frauds as a defense. About October 18,1920, the plaintiff sent defendant a written invoice of the shipment, which contained all of the essential elements of a memorandum of the contract. This invoice was received by the defendant and the plaintiff claims that it, with the two telegrams sent to plaintiff by defendant, one October twenty-ninth and the other October thirtieth, satisfied the requirements of the statute that there should be a memorandum in writing signed by the defendant. An examination of the invoice and telegrams makes it apparent that this claim is without foundation. The invoice varies in material respects from the terms of the oral contract. In neither telegram was there any reference to this invoice and nothing in either telegram indicates that the defendant intended to recognize or approve the invoice or accept its terms. The first telegram stated simply the reason why he could not accept the car. The second telegram, as the referee held, was simply an offer to compromise, which the plaintiff did not accept, choosing rather to rest upon whatever rights it had under the rejection. The contract of sale is, therefore, not enforcible by action. (Pers. Prop. Law, § 85, as added by Laws of 1911, chap. 571; Drake Hardware Co. v. Dewitt, 142 App. Div. 192.)

Nor could the plaintiff recover if the Statute of Frauds were not pleaded, or if, as appellant claims, the contract by the evidence were taken out of the statute. The record would still present the question whether or not there was an overcharge for freight. The appellant’s position then is: The oral contract is valid, and, but for the Statute of Frauds, could be enforced. The defendant testified that he did not cancel the purchase because of the fall in the price of the meal, and that, when he sent the telegram on October thirtieth, he was willing to accept the car if they would send the check, although he thereby would have lost $300 or $400 at that time. The fair construction of the telegram of October twenty-ninth is that defendant refused to accept the meal because of the overcharge for freight. Where a purchaser of goods refuses to accept delivery on a ground specified, he is deemed to have waived all other objections. (Pierson & Co. v. American Steel Export Co., 194 App. Div. 555; Hess v. Kaufherr, 128 id. 526; Littlejohn v. Shaw, 159 N. Y. 188.) It must be held that the telegram and the evidence of the defendant show that the defendant refused the delivery of this car of meal because of the freight overcharge. Assuming this position, the burden then rested upon the plaintiff, in order to recover the price of the meal, to show that the freight rate from Edgewater to New Woodstock was thirty-one cents per 100 or more. (Littlejohn v. Shaw, supra.) The referee did not find the correct freight rate between these points and he refused to find specific rates upon requests of both plaintiff and defendant. This was probably due to the fact that the evidence on this question is unsatisfactory. The defendant testified that the freight rate was seventeen cents. He was asked: “ When did you get one at that rate? A. Day before yesterday.” He testifies at another place that he had had a number of cars from Edgewater then (about the time of this shipment) at around sixteen and seventeen cents. When the agent reported the rate to be sixteen and eight-tenths cents per 100, he took the published rate and added forty per cent thereto. This agent testified that, in July, 1920, the regular rate on oil meal from Undercliff (which is the Edgewater station) to New Woodstock was twelve cents, and that a car of oil meal on July 8, 1920, was shipped at this rate. Thereafter and up to October twenty-sixth there was but one change, namely, a forty per cent raise in the rate. By adding forty per cent to the last published rate he determined the rate which he named to this defendant on October twenty-eighth, sixteen and eight-tenths cents. Plaintiff’s witnesses have testified that there was no present published rate on oil meal from Undercliff to New Woodstock; that oil meal comes under the sixth grade of freight and they have figured out a rate from Edgewater to New Woodstock by adding together local rates on sixth grade freight between intermediate stations on connecting lines. There was a published rate on gluten, a by-product of a manufacture of starch from com, and certain other commodities, of seventeen cents between these points; but no published rate for oil meal. Plaintiff’s witnesses testified that, because the corn was shipped from the west and then the gluten was shipped back, more favorable rates were given on gluten than on some other commodities of the same grade; otherwise the starch factories would not be able to compete in prices. We are not satisfied with the testimony that the rate on oil meal should be thirty-one cents or more and think the court would have been justified in holding that seventeen cents was a proper rate. The defendant has not established that the freight rate charged, thirty-one cents per 100, was the correct rate. The defendant was justified in refusing to accept the meal.

The judgment should be affirmed, with costs.

All concur.