App. Div.] FOURTH DEPARTMENT, MAY, 1904. we think that evidence was not sufficient to justify the finding that the defendant committed perjury when he testified that he delivered hogs to Fairbanks on the morning of the 7th of August, 1902. If we assume, as urged by the People, that the fair interpretation of the evidence of Fairbanks is that such hogs were not delivered to him, still we think the evidence insufficient because there is no corroboration of such statement, or corroborating circumstances which we deem to be necessary. (People v. Stone, 32 Hun, 41.) But, as we have seen, the defendant offered considerable evidence tending to corroborate his testimony that in fact he did deliver the hogs to Fairbanks as testified to by him. There is still less evidence to support the charge that the defendant committed perjury when he testified upon the Boyce trial that on the seventh day of August he contracted hogs at Peterson's for his neighbor Ross. The defendant upon this trial, as upon the Boyce trial, testified positively that he went to Peterson's meat market after dinner and there contracted for some hogs for his neighbor Ross. The People, to establish that such testimony given by the defendant was false, called Alfred Peterson, one of the proprietors of the meat market. He testified that he had no recollection of the defendant contracting with him for the sale of hogs on the day in question. On cross-examination he was shown a letter written by Peterson's firm in November following addressed to the defendant and mailed to him at his home, which clearly indicated that at some time the defendant had either made a contract or had some negotiations with Peterson or his partner in relation to the delivery of hogs. There was no corroboration of Peterson that the defendant had not made such contract, even if it be assumed that his evidence was capable of that construction; and, on the other hand, the letter was some corroboration of the defendant's story that he had made the arrangement with Peterson testified to by him. After reading the letter the witness Peterson stated that it was all right, that his partner had written it, and that he did not doubt a bit, if Mr. Root had been there and talked with him, and said he or his neighbor Ross had some hogs that he wanted to sell, that it might have escaped his memory, and in substance that the defendant might have been there and contracted the hogs and that he instructed his partner to write the letter The evidence was wholly insufficient to justify a finding that FOURTH DEPARTMENT, MAY, 1904. [Vol. 94. the defendant testified falsely in the Boyce trial when he stated that shortly after dinner on the seventh day of August he contracted or made arrangements for the sale of hogs to Peterson for his neighbor Ross. It is urged by the learned district attorney that the falsity of the defendant's testimony upon the main issue, to wit, that he was with Boyce in Jamestown after four o'clock on the afternoon of August 7, 1902, may be considered and taken in corroboration of the testimony tending to show that he did not deliver hogs to Fairbanks, or contract for his neighbor's hogs with Peterson as testified to by him. The difficulty with that proposition is that for aught that appears, as we have suggested, the jury may have found that the defendant testified absolutely truthfully as to every other issue in the case except one or the other of those now under consideration. We think the verdict of the jury, which may possibly have been based upon the assignment of perjury submitted that the defendant testified falsely when he stated upon the Boyce trial that he delivered hogs to Fairbanks and contracted for the sale of hogs to Peterson on the 7th day of August, 1902, was contrary to and against the weight of the evidence. Having reached the conclusion that the judgment must be reversed because the verdict of the jury is against the weight of the evidence, it is unnecessary to consider the exceptions taken to the rulings of the court made during the progress of the trial. It may not, however, be inappropriate to say that upon a trial of a criminal action the trial judge ought not to give, in the presence of the jury, his recollection of any question of fact which may be in issue upon the trial. Such a statement of the recollection of the court was made in this case, but in view of the result already indicated we deem it unnecessary to determine the validity of the exception taken thereto. It follows that the judgment of conviction should be reversed and a new trial ordered. All concurred, except WILLIAMS and STOVER, JJ., who dissented. Judgment of conviction reversed and new trial ordered. App. Div.] FOURTH DEPARTMENT, MAY, 1904. WILLIAM F. BOYSEN, Appellant, v. THE VAN DORN IRON WORKS COMPANY, Respondent. Proposal and acceptance of an offer to furnish material and work—when binding although a further formal contract is contemplated-effect of the parties treating them as tentative and each insisting on modifications. A bidder for the work of constructing a municipal improvement, while the bids were being considered by the municipal authorities, entered into negotiations with a manufacturing corporation which terminated in a written proposition made by the corporation and accepted by the bidder, whereby the corporation agreed to furnish the materials and perform certain work in connection with the contemplated improvement at certain specified prices. The written proposition contained the provision that upon the award of the contract to the bidder a written agreement between the parties should be executed. The bidder obtained the contract. Held, that the proposition and acceptance, taken by themselves, constituted a valid agreement between the parties, and that its validity was not impaired by the fact that it was to be followed by a formal contract; That if either party had refused to enter into the intended formal contract, the other party thereto could specifically enforce the agreement embodied in the proposition and acceptance or recover the damages resulting from such refusal; That, as both parties had, however, coincided in the conclusion that the proposition and acceptance were tentative and subject to substantial modifications, and had failed to agree upon such modifications, or to enter into the formal contract, the bidder could not enforce the contract contained in the proposition and acceptance. APPEAL by the plaintiff, William F. Boysen, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 22d day of September, 1903, upon the decision of the court rendered after a trial at the Erie Trial Term, the jury having been discharged, dismissing the complaint upon the merits. Eugene M. Bartlett, for the appellant. John M. Hull and Marc W. Comstock, for the respondent. SPRING, J.: In the spring of 1899 the plaintiff was a bidder for a proposed grade crossing improvement at the Elk street and Abbott road crossing to be made by the city of Buffalo. During the pendency of FOURTH DEPARTMENT, MAY, 1904. [Vol. 94. the consideration of the bids by the municipal authorities negotiations were had between the parties to this action terminating in the written proposition by the defendant which was accepted by the plaintiff whereby the defendant was to furnish the materials and construct the hand railing for the contemplated improvement at certain specified prices aggregating for the work to be performed by it nearly $6,000. The proposition by the defendant and its acceptance by the plaintiff contain the provision that upon the award of the contract to the plaintiff a written agreement between the parties is to be entered into. The plaintiff was the lowest bidder and executed an agreement with the city of Buffalo pursuant thereto for the performance of the entire work for the sum of about $60,000. This action is to recover damages by reason of the breach of the alleged agreement by the defendant and is based upon the proposition and its acceptance and the refusal of the defendant to perform in accordance therewith. The proposition and its acceptance taken by themselves would constitute a valid agreement between the parties. The fact that the memorandum was to be followed by a formal contract did not impair the validity of the agreement. (Sanders v. Pottlitzer Bros. Fruit Co., 144 N. Y. 209.) If either party had refused to enter into the intended contract the other party could specifically have enforced the agreement embodied in the proposition and acceptance or obtained damages accruing from such refusal. The agreement was made and the written contract for it was merely to put it in formal shape and added nothing to its validity. That is the aspect presented when viewed from the papers themselves, but the difficulty with the plaintiff's case is the subsequent conduct of the parties which indicates that they did not regard the proposition and acceptance as a binding memorandum. After the acceptance of the bid of the plaintiff he forwarded to defendant a proposed agreement executed by himself and accompanied by a bond of indemnity also signed by him and which he requested the defendant also to execute. The defendant wrote the plaintiff in reply declining to execute the bond tendered, but offered to give its bond with "first class sureties" and asking a bond of the plaintiff "just as good" as the one to be given by it. Under date of May seventeenth the App. Div.] FOURTH DEPARTMENT, MAY, 1904. defendant mailed to the plaintiff a proposed contract which contained a clause to the effect that the comptroller of the city was "authorized to retain such moneys of each estimate as may be due the party of the second part, and to be paid direct to parties of the second part by said comptroller." In this letter the defendant stated that upon the return of the agreement signed it would at once make application to a surety company for a bond on its behalf. The plaintiff in reply declined positively to execute the agreement containing the clause quoted, and added: "The tone of this contract seems to predict complications of one form or another, and this is the very thing I desire to avoid, hence I wish to have an understanding before executing a contract for this material. Under the circumstances if I am to anticipate (or you are) any future trouble in our business relations we will be mutually better off to have none." * * * The defendant in a letter dated May twenty-second urged the importance of this provision for an acceptable surety company bond guaranteeing to it the stipulated compensation upon the completion of the work, and in the letter is this sentence: "We do not anticipate any future trouble, but it is our desire to have the matter thoroughly understood before we purchase our material." On July thirteenth the plaintiff wrote to the defendant asking "what disposition you intend to make of the matter?" In a reply the next day the defendant stated: "Answering yours of July 13th would say that the facts are that your commercial standing does not warrant us in accepting this bid, and unless you can have some responsible party join with you or accept the contract we have sent down, we shall have to decline said contract." In a letter dated August eighth the defendant said: "This matter has drifted on to such an extent of time that we must decline to enter into a contract with you at the price heretofore quoted you." It is to be noted that the price of materials had been constantly tending upward, and at the outset of the negotiations the defendant urged upon the plaintiff the importance of deciding promptly whether the deal was to be consummated because of the advance in the cost of materials necessary to the performance of the agreeAPP. DIV.-VOL. XCIV. 7 |