John J. Falihee, Respondent, v. John Simmons Company, Appellant

John J. Falihee, Respondent, v. John Simmons Company, Appellant. First Department, November 22, 1907. Statute of Frauds — sale of goods over fifty dollars in value — memorandum. not complying with statute. Action on the breach of a contract to sell and deliver goods. It appeared that the plaintiff asked for estimates on plumbers’ supplies and the defendant submitted such estimate in writing, but unsigned. The plaintiff told one S., a salesman in the defendant’s employ, b.ut without authority to make or change prices, that he would accept the proposal if the estimated price could he reduced from §7,736 to §7,500. Thereupon S. communicated with Walton, the defendant’s manager, by telephone, stating , that the plaintiff would accept the estimate at the reduced price, whereupon the ijlaintiff also talked with the manager by telephone and was told by him that the contract was accepted at the reduced figure. Thereupon S. at the plaintiff’s request changed the estimated price and wrote at the bottom of the estimate: "The amt. agreed $7,500 by H. W. Walton, Del. to be made 15 June, 1905.” Held, that as a matter of law the written estimate did not comply with the Statute of Frauds so as to hind the defendant to a sale of goods over fifty dollars in value; That as the agreement by the defendant’s manager to reduce the price was made in a conversation with the plaintiff and not with S., no authority was con-0 ferred upon S. to sign the memorandum; That the memorandum made by S. at the foot of the estimate did not purport to he an execution of tire contract on behalf of the defendant, hut was merely a memorandum that the manager had reduced the price. Patterson, P. J., dissented. Appeal by the defendant, the John Simmons Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ISTew York on the 5th day of March, 1907, upon the verdict of a jury, and also from an order entered in said clerics office on the 28th day oí February, 1907, denying the defendant’s motion for a new trial made upon the minutes. • J. Culbert Palmer, for the appellant. Claude V. Pallister, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: The defendant appeals .from a judgment entered on a verdict. The action is for damages for defendant’s refusal to fulfill a contract for the sale and delivery of merchandise. The defense is that no valid contract was entered into, because the alleged contract was for the sale of goods for the price of more than fifty dollars and no note or memorandum thereof was ever, as it is said, made in writing and subscribed by the said defendant or its lawful agent. . The plaintiff contemplated bidding on a contract to do the plmnbing work on certain houses' in the course of construction, and sent out letters -to a number of firms dealing in plumbers’ supplies asking for .estimates. The defendant submitted an estimate giving a detailed list of the materials to be supplied and fixing the price at $7,736. This estimate was not signed. After ’ receiving this estimate plaintiff sent for one Surre, a salesman in defendant’s employ, and stated that he would accept the proposal if the estimated price could be reduced to $7,500. Surre replied that lie had no authority to make or change prices, as was the fact, but he called up on the telephone one Walton, the defendant’s manager, -who, as is conceded, had authority to bind defendant. Surre informed Walton that plaintiff wished the price reduced to $7,500, to which Walton replied, “ all right.”' Plaintiff and Walton then had a conversation over the telephone, and Walton said, *we will accept your contract for $7,500; how soon will they have to be delivered % ” Thereupon Surre, at plaintiff’s request, struck out of the proposal the original price of $7,736 and wrote in place thereof the words and figures $7,500, and wrote at the bottom of the estimate the words: “ The amt. agreed $7,500 by H. W. Walton, Del. to be made 15 June, .1905.” It is. upon this act of Surre’s that the claim is made that a note of memorandum of the contract was made in writing and signed by defendant’s agent. It is conceded, as it must be, that, until Sume wrote the above words at the foot of the estimate, the paper was merely a tentative proposal, not binding upon defendant. It is also clear, and is not disputed, that Surre had no general authority to make a contract in behalf of defendant, although. .Walton had. The question, therefore, is whether or not Surre undertook to make a binding contract, and, if so, whether he' was specially authorized by Walton to. do so. We ¿onsider that as a matter of law the question should have been answered in defendant’s favor. All that Walton did was to consent to a change in the price stated in the estimate. Nothing was said over the telephone respecting the signing of the estimate, or respecting anything else except changing the proposed price. The agreement by Walton to accept a contract at $7,500 was made in a conversation with plain-, tiff, and not with Surre, and, therefore, cannot be construed as conferring any authority on Surre. Furthermore, the memorandum made by Surre does not purport to be an execution of the contract or the signing of a* proposal therefor on behalf of defendant. It appears on its face to be merely a memorandum that Walton had agreed to a reduction of the price to $7,500. Since there was no other basis than this for plaintiff’s claim that a valid contract had been made, the complaint should have been dismissed. The judgment and order must be reversed and a new trial granted, with costs to appellant to abide the event. Ingeaham, McLaughlin and Houghton, JJ., concurred; Pattebson, P. J., dissented. Judgment and order reversed, new trial ordered, costs to appellant to abide event.