9. Frauds, statute of 44(3).

Oral employment contract for term of five years, with right of renewal, is invalid under statute of frauds.

Memorandum is not sufficient, within statute of frauds, if it merely identifies a contract, but it must be the entire contract sued on.

11. Frauds, statute of 118 (3)-Letter in which plaintiff claimed employment contract had 32 years to run, and answering letter failing to deny such claim, held insufficient as written memorandum signed by party to be charged, within statute (Personal Property Law, § 31, as amended by Laws 1911, c. 571).

Letter in which plaintiff claimed that present employment contract, not specifying duration, had 32 years to run, with right of renewal for 5 years, and defendant's answering letter, which did not specifically deny such claim, held insufficient as written memorandum of contract, signed by party to be charged, required by Personal Property Law, § 31, as amended by Laws 1911, c. 571.

12. Master and servant 8(1).

Correspondence between parties held to require finding that they did not agree on 5-year employment contract on commission basis.

Action by Garrett H. Smith against the Compania Litografica de la Habana. On motions by plaintiff and by defendant for directed verdict. Verdict directed for defendant as to first cause of action, and for plaintiff as to second cause of action.

See, also, 121 Misc. Rep. 368, 201 N. Y. S. 65.

Lucius L. Gilbert, of New York City, for plaintiff.

Sullivan & Cromwell, of New York City (E. H. Sykes, of New York City, of counsel), for defendant.

CARSWELL, J. The plaintiff and the defendant each move for a direction of a verdict. They have stipulated that the motions may be decided with the same force and effect as if they had been disposed of on the trial. There are two causes of action-one for $80,000 damages for breach by the defendant of an alleged contract of employment, and a second for commissions claimed to have been earned prior to the said breach and not paid by the defendant. The determination herein should be one that will conform to section 457-a, Civil Practice Act (as added by Laws 1921, c. 372); that is, such a verdict should be directed which, if found by a jury, would not be required to be set aside as being against the weight of the evidence. The trial court has no advantage over an appellate court in deciding the questions of fact herein, because, with the exception of the plaintiff's testimony, the evidence is documentary or has been adduced by depositions.

1. As to the first cause of action I am of the opinion that the plaintiff

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(217 N.Y.S.)

should prevail (A) unless the documentary evidence precludes acceptance of the parol testimony of the plaintiff; (B) or unless after its acceptance it is futile because the law makes a contract founded thereon unenforceable; (C) or if, because the memoranda relied upon as incorporating the oral contract, it is not a sufficient memorandum of the alleged contract, signed by the party to be charged therewith so as to be valid in law. Each of these aspects, will be taken up in its order and merely my conclusions thereon stated.

(A) The plaintiff and the defendant had contract relations beginning in November, 1914, whereby the plaintiff was to represent the defendant in the United States and Canada "for five years with rights of renewal," on a commission basis of "either 10 per cent. or 5 per cent. according to prices quoted." On August 1, 1918, the plaintiff and defendant signed a paper in Cuba, which set out a new arrangement between the parties and obligated the defendant to pay the plaintiff a flat sum on a monthly basis. This paper of August 1, 1918, had a postscript, also signed by both parties, as follows:

"P. S.-If we terminate this contract, we will begin a new one on the basis of commission."

[1] The contract referred to (the one to which this postscript was appended) did not fix any period in years during which it was to run. The plaintiff has adduced parol evidence of a talk claimed to have been had contemporaneous with or just prior to the moment of signing of this August 1, 1918, paper. The defendant asserts that this parol evidence is not admissible on any theory and plaintiff asserts that it is admissible on several theories:

(1) That the paper of August 1, 1918, being silent as to its duration, parol evidence is admissible to supply such a term. This is unsound. Parol evidence of such a term is only admissible where the period resting in parol relates to the written contract it is claimed that the unwritten term is a part of. In this case the period of duration in the parol evidence does not relate to the contract set out in the August 1, 1918, paper, but to an entirely different contract. It relates to a claimed revival, in whole or part, of the original contract of 1914, which is not part of the contract of August 1, 1918, because that paper contains a provision that it is to be deemed as "rescinding all previous agreements and contracts." This parol arrangement in its other particulars is a separate and independent contract that has no relation to the August 1, 1918, paper, except the claim that it was a then existing contemporaneous agreement to take effect on the termination of the August 1, 1918, paper.

[2, 3] (2) It is claimed that the postscript to the August 1, 1918, paper makes this oral evidence (claimed to be contemporaneous with the

signing of that paper) admissible by way of explaining the ambiguity of the postscript or supplementing it. (a) The postscript itself is not ambiguous. (b) If, however, it be deemed ambiguous, or deemed to be of such a character that it is incomplete and needs explaining, the contemporaneous parol evidence does not explain or clarify the postscript. It varies and contradicts the postscript, and for that reason the parol evidence was not admissible. This contradiction consists in the fact that the postscript says that, if the parties terminate this contract, meaning the written contract, they will begin a new one on the basis of commission. The parol evidence purports to be a then existing contract, complete in its terms and agreed to before the signing of the August 1, 1918, paper, or purports to be the complete agreed upon revival of the old terms of the 1914 contract. It is therefore not a new contract, reference to which is contained in the postscript. A contract already in existence is not a new contract. It is another contract, different, but not new. This parol evidence may not be accepted, because it is contradictory of the written terms of the paper of August 1, 1918, both with respect to the first paragraph thereof, stating that all previous agreements were rescinded, and with respect to the terminology of the postscript, which does not contemplate the then existence of another agreement, contemporaneous with the August 1, 1918, paper or written agreement, but merely contemplates another contract, to be entered into and agreed upon at some subsequent time, to wit, when the August 1, 1918, written agreement is terminated.

[4] (B) We will assume, however, that the parol evidence of this claimed contemporaneous contract entered into between the parties as of August 1, 1918, and to have operation at the termination of the August 1, 1918, paper or agreement, is admissible. If it is an oral contract for a period of five years, with the right of renewal, may it be enforced in this state? This oral contract was made in Cuba. What law governs this contract?

[5, 6] The general rule is that the lex loci contractus prima facie determines the validity, obligation, and legal effect of a contract. This rule yields to an express or implied contrary intention of the parties that some other law is to control. When a contract is to be performed in a place other than the one in which it was entered into, it is presumed that the parties intended that the lex loci solutionis is to control. When the place of performance is in different states or countries, the presumption as to the intention of the parties to have the lex loci solutionis control does not obtain, and the general rule applies, in the absence of an express agreement to the contrary. Stumpf v. Hallahan, 101 App. Div. 383, 91 N. Y. S. 1062; aff'd 185 N. Y. 550, 77 N. E. 1196; King v. Sarria, 69 N. Y. 24, 32, 25 Am. Rep. 128; Fish v. D., L. & W. R. R., 211 N. Y. 374, 382, 105 N. E. 661; Dyke v. Erie R. R., 45 N. Y. 113,

(217 N.Y.S.)

116, 6 Am. Rep. 43; Everett v. Vendryes, 19 N. Y. 436; Bowen v. Newell, 13 N. Y. 290, 64 Am. Dec. 550; Graham v. First Nat. Bank of Norfolk, 84 N. Y. 393, 400, 38 Am. Rep. 528; Hall v. Cordell, 142 U. S. 116, 12 S. Ct. 154, 35 L. Ed. 956; Turnow v. Hochstadter, 7 Hun. 80; 12 Corpus Juris, 450, § 31.

In this case, if it be deemed that the place of performance is New York, then the law of the forum controls. If it be deemed that the contract was to be performed in New York and also in other parts of the United States, then the lex loci contractus controls; that is, Cuba. If we disregard the place or places of performance, then the general rule of lex loci contractus controls herein, that is, Cuba. The result herein, under the state of the proof, is the same, no matter which one of these three different lines of inquiry is held to have effect; that is, the lex loci solutionis and the lex loci contractus herein, under the proof and the presumptions applicable or inapplicable thereto, is the law of the forum. The law of Cuba was not proven herein.

[7, 8] There is a presumption that the common law of England obtains in this state and in states and countries which adopted the common law from England. This presumption does not have application to any other foreign country or state. The presumption does not apply to Cuba. Therefore we have no law of Cuba to apply herein. In such a situation, where no law is available by proof or with aid of presumption, the court, in the absence of presumption or proof, is relegated to the applicable law of the forum, whether it be common or statutory. Savage v. O'Neil, 44 N. Y. 298; Crashley v. Press Pub. Co., 179 N. Y. 27, 32, 71 N. E. 258, 1 Ann. Cas. 196; Lucia v. Evans, 146 App. Div. 416, 422, 131 N. Y. S. 280; Schweitzer v. H. A. P. A. Gesellschaft, 149 App. Div. 900, 903, 134 N. Y. S. 812. The law of the forum, for the practical purposes of this case, under the proof, becomes the law of Cuba.

[9] Under the law of the forum, this claimed oral contract is without validity, because of the statute of frauds, even assuming it is not part of the common law of this state. The defendant pleads the New York statute of frauds. There is authority for the proposition that the English statute of frauds (Lord Tenterden's Act) became part of the common law of this state, and that our statute of frauds is merely declaratory of that common law. Cahill v. Pemberton (Com. Pl.) 27 N. Y. S. 927. On that theory, if we were to assume that only the common law of New York applied in this case or obtained by presumption in Cuba, the same result indicated above would ensue.

[10, 11] (C) It is claimed, however, that the oral contract, claimed to be contemporaneous with the August 1, 1918, paper, is embodied in writings in a manner that caused it to no longer rest in parol, and there

fore its claimed ultimate written form does not offend the statute of frauds of the forum. This claim has for its basis the correspondence between the parties, particularly the letter of November 16, 1922, in which the plaintiff wrote to the defendant, claiming a present contract for an unexpired 311⁄2 years, with a right of renewal for 5 years, and discussing a different basis for carrying on his relations with the defendant. Defendant answered this letter December 18, 1922, without specifically challenging the statement with regard to a contract having 31⁄2 years to run. It is claimed that the correspondence embodied in these two letters, considered in connection with the certain other letters cited, furnishes written evidence of the contract the plaintiff is suing upon. The cases require that a written agreement must show the entire contract. Drake v. Seaman, 97 N. Y. 230; Poel v. Brunswick-Balke-Collender Co., 216 N. Y. 310, 314, 110 N. E. 619; Wright v. Weeks, 25 N. Y. 153, 157; Mandel v. Guardian Holding Co., 200 App. Div. 767, 769, 770, 193 N. Y. S. 777; Dawson v. Margolies, 126 Misc. Rep. 39, 41, 212 N. Y. S. 471. Of course, this rule does not prevent an existing situation referred to in the written agreement from being incorporated therein by reference and evidenced by parol. Marks v. Cowdin, 226 N. Y. 138, 123 N. E. 139.

But a previously existing situation, which has ended and been followed by another situation, cannot be treated as an existing situation. It is not enough that the written memoranda identify a contract. The written memoranda must be the contract. Poel v. BrunswickBalke-Collender Co., supra; Drake v. Seaman, supra; Wright v. Weeks, supra; Mandel v. Guardian Holding Co., supra; Dawson v. Margolies, supra. The written memoranda in this case, particularly the letter of November 16, 1922, with the reply thereto, is not the contract sued upon herein. It is at best a purported identification of a contract. Even though an inference were to arise from a failure to specifically deny that there was an admission that a contract existed, such inferential admission is not effective to constitute a written memorandum as required by statute to be signed by the party charged therewith, of the contract sued upon herein. The inference, or the writing from which the inference is drawn, cannot nullify the statute, and neither the inference nor the writing from which it is drawn evidences the terms of the contract sued on herein in the form required by the statute. Personal Property Law, § 31 (as amended by Laws 1911, c. 571). Such an inference, if drawn, would not be conclusive. It could only be given effect if the rest of plaintiff's correspondence did not destroy or extinguish the inference. This is what that other correspondence does.

I need note but one difference regarding a missing important element or term. The plaintiff asserts-concedes that the contract he invokes permitted the defendant to discontinue doing United States business