Millar v. Fitzgibbons
New York Court of Common Pleas
Appeal from a judgment of the district court in the city of New York for the third judicial district. In April, 1880, the plaintiffs in this action at their store gave to a salesman of the defendant, who was a commission merchant, an order in the following language: “New York, 4 | 8, 1880. “ Messrs. Fitzgibbons, Messer & Co., please furnish us 1,000 reams 36x40—40 lbs. to ream a $290 per 100 lbs. less 50 to be delivered in the month of April.
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Appeal from a judgment of the district court in the city of New York for the third judicial district. In April, 1880, the plaintiffs in this action at their store gave to a salesman of the defendant, who was a commission merchant, an order in the following language: “New York, 4 | 8, 1880. “ Messrs. Fitzgibbons, Messer & Co., please furnish us 1,000 reams 36x40—40 lbs. to ream a $290 per 100 lbs. less 50 to be delivered in the month of April. “ Yours, &c., “ George W. Millar & Co.” There was no written acceptance of the order by the defendant and no money paid by the plaintiffs on account…
1Opinion of the CourtVan Brunt, J.
[After stating the facts as above.]—Upon the face of the order in question it- would appear to be a contract of sale, and, as a consequence, within the statute of frauds. The plaintiffs, in order to avoid this conclusion, have endeavored to show that it was in the contemplation of the parties that the goods should be manufactured in order to fill the order, and that thus it was a contract for work, labor and services within the decisions upon the statute of frauds, and not a contract of sale of goods, wares and merchandise. It is admitted upon the part of the appellants that if any order of…
2Cases cited1 opinion
- Passaic Manufacturing Co. v. HoffmanNew York Court of Common Pleas · 1871
3Cited by5 opinions
- Eagle Paper Box Co. v. Gatti-McQuade Co.Appellate Terms of the Supreme Court of New York · 1917
- Evarts v. ThornCity of New York Municipal Court · 1887
- Joy v. SchlossCity of New York Municipal Court · 1884
- Morse v. Canasawacta Knitting Co.Appellate Division of the Supreme Court of the State of New York · 1912
- Rutty v. Consolidated Fruit-Jar Co.New York Supreme Court · 1890