David Taylor Co. v. Fansteel Products Co. (234 A.D. 548, 1932)

Sherman, J.

The controlling question is whether or not the amended complaint must meet dismissal upon the ground that the agreement sued on does not constitute an integrated written contract in which are embodied all of the essential terms as required by the Statute of Frauds. The contract is for the sale and delivery of ore containing from thirty per cent to sixty per cent of tantalum oxide, of a value far in excess of fifty dollars, and is not to be performed within a period of one year. Defendant purchased thereunder all of the ore to be used and treated by it during the period of the contract. Deliveries of the ore were to be made from time to time.

Defendant raises the bar of the statute, by reason of the provision of section 31 of the Personal Property Law, that “ every agreement * * * is void, unless it or some note or memorandum thereof be in writing ” which “ By its terms is not to be performed within one year from the making thereof,” and, additionally, because section 85 of the Personal Property Law makes an unwritten contract for the sale of goods of the value of fifty dollars and upwards unenforcible. If section 85, alone, be applicable here, part performance, which is here pleaded, would take the case without the statute, but if section 31 also applies, a contract which contravenes its provisions would be void, and part performance would invest it with no validity.

We have concluded that both sections of the Personal Property Law apply here. (Barkley v. Rensselaer & Saratoga R. R. Co., 71 N. Y. 205; Seamans v. Barentsen, 180 id. 333, revg. 78 App. Div. 36; Gordon v. Niemann, 118 N. Y. 152;Large v. Wire Wheel Corporation of America, 223 App. Div. 134; affd., 250 N. Y. 531; Williston Sales, § 51, and cases there cited; Prested Miners’ Co., Ltd., v. Garner, Ltd., [1910] 2 K. B. 776; affd., [1911] 1 id. 425; Simpsom-Fell Oil Co. v. Pierce Petroleum Corp., 32 Fed. [2d] 576.)

In Seamans v. Barentsen (supra) the parol contract was for the delivery of milk to defendant, and was not to be fully performed within one year. There was partial and continued performance until defendant’s breach in refusing to take any more milk. The Appellate Division said (p. 37):