Franklin Sugar Refining Co. v. Lipowicz

Sears, J.

(dissenting in part). I concur in the determination of the majority for a reversal of the judgment on the law and the facts, but favor directing a verdict for the plaintiff for the sum of $13,260.45.

As I read the record, the Statutes of Frauds of Pennsylvania and New York are interposed as a defense only to the causes of action based on three of the seven contracts. Recovery is not sought in the complaint for a complete breach of the four other contracts but only for failure to take and pay. for part of the goods covered by such contracts. The complaint shows partial deliveries and acceptances under each of these four agreements. Under such circumstances the Statute of Frauds even if pleaded would not be applicable because of such partial deliveries and acceptances. Therefore, as I agree with what is stated in the prevailing opinion in regard to the breach of the contracts, recovery should in my judgment be allowed the plaintiff for the breach of the four contracts to which the Statute of Frauds has no reference.

In respect to the three contracts as to which the Statutes of Frauds of both Pennsylvania and New York are pleaded, I concur substantially with the view of the trial court. While the evidence shows that the sugar trade in general uses differentials in making contracts in such cases as are involved in this action, it fails to show, as I read the record, that the same differentials are used generally in the trade. For all that appears each refinery may have its own schedule of differentials. Such a schedule would be no more than a price list of that particular refinery. The price list or refiner’s schedule is consequently an inherent part of a contract made with reference thereto, and to satisfy the Statute of Frauds such part of the contract must be in writing and signed. (Franklin Sugar Refining Co. v. Howell, 274 Penn. St. 190; Franklin Sugar Refining Co. v. Kane M. & G. Co., 278 id. 105; Franklin Sugar Refining Co. v. John, 279 id. 104; Wilson v. Lewiston Mill Co., 150 N. Y. 314; Ward v. Hasbrouck, 169 id. 407; Brauer v. Oceanic Steam Nav. Co., 178 id. 339.) If the amount of the differentials were established by trade custom, the Statute of Frauds would be satisfied. (Franklin Sugar Refining Co. v. John, 279 Penn. St. 104.) As already stated, however, the proof of trade custom does not in my opinion go far enough to do this. I, therefore, find that each of the three contracts in relation to which the Statutes of Frauds are interposed as a defense fails to embody in writing the whole agreement and is unenforcible, both under the Pennsylvania and under the New York statutes.

Judgment reversed on the law and facts, with costs, and judgment directed in favor of the plaintiff against both defendants for the sum of $41,113.45, with interest from December 15, 1921, with costs.