Stuart v. Spitzer

(dissenting). The trial judge set aside a directed verdict in favor of plaintiff because he felt that he had mistakenly applied the law respecting the proof of damages under a counterclaim which he had dismissed. The majority of the court are of the opinion that the view of the trial judge on the question of damages, which led him to set aside the verdict, was right. In my consideration of the case I do not reach that question and, therefore, express no opinion upon it.

Defendant’s counterclaim is for breach of an alleged contract to sell and deliver 150 pieces of woolen goods. I am satisfied that, as matter of law, the evidence was insufficient to establish such a contract. The evidence relied upon to prove the contract was all in writing, consisting of letters and other exhibits. My view is that the construction and legal effect of these writings was a question exclusively for the court. Taking them all together, there is not enough in them to permit a jury to draw the inference that the contract relied upon by defendant was made. It is not a case where papers capable of supporting different inferences must be left to the jury for construction. There was no extrinsic evidence to aid interpretation. Either the writings themselves show the formation of a contract or they do not, and, in my judgment, it would be quite improper to allow a jury to express any opinion on that question. Hence, the counterclaim was properly dismissed on the trial.

A contract for 210 pieces was made with plaintiff’s assignor in January, 1924. In making that contract defendant attempted to reserve the right to order 150 pieces more at the contract price. The vendor unequivocally refused to permit such a reservation. This would end the case except for an agreement made by Blumenstock, the agent of the seller, on April 7, 1924, by which he apparently undertook to bind his principal to deliver the 150 pieces of “ reservations ” at the contract price made for the 210 pieces. The reception of this letter in evidence was objected to on the ground that the authority of the agent had not been shown. The same *356objection was made when the carbon copy was offered, and again on the motion to dismiss the counterclaim and for the direction of a verdict. Although the agent was called as a witness, he was not examined on the question of his authority to make the agreement. The agreement was repudiated by the principal, which refused to recognize the order unless different arrangements regarding defendant’s credit were made and defendant appears to have fully recognized that the question was one resting in the discretion of the vendor. In other words, it seems to have been the ordinary case of an arrangement made with a salesman and subject to the approval of his principal.

Authority for making the agreement is sought in the letters of March twenty-fifth and April fifth, but those letters refer to complaints made in defendant’s letters of March seventh and April third, which made various complaints but said nothing whatever about the refusal to recognize the “ reservation ” of 150 pieces. Furthermore, although the correspondence continued until June thirtieth, there is no suggestion that defendant thought he had any ground for demanding delivery as a matter of legal right. On the contrary, defendant admitted that he'owed the balance here sued for and that he was withholding payment pending settlement of a claim for non-delivery which had been made against the railroad company. In short, a reading of the correspondence convincingly shows that at no time did the vendor intend to assume any obligation to deliver the so-called reservations and that the defendant fully understood that no such legal obligation existed.

That the trial judge himself doubted that any contract had been proved is evidenced by his opinion.

The order should be reversed, with costs, and the verdict should be reinstated.

Order affirmed, with costs to respondent to abide the event.

Bijur and Levy, JJ., concur.