Roth v. Hyer

HOLMES, Circuit Judge

(dissenting).

The dealings between the parties to the alleged contract never passed beyond the stage of negotiations for a sale. The minds of the parties never met; they never met personally; never talked to each other over the telephone; and not a line of writing ever passed between them. The seller was in Florida, the buyer in New York. This is as close as they ever got together, either in mind or body.

Messages passed from Roth to Hyer, and a letter was addressed to Hyer in care of Schelker, but they amounted to no more than proposals and counter proposals. The agent that wrote the letter that is alleged to have bound the seller to part with his property for about two-thirds of its value was a New York lawyer, named Schelker, who was employed solely as an associate counsel to' represent the claimant in a bankruptcy proceeding pending in a federal court in New York. He was associated in the case by a Florida lawyer by the name of Dickinson, who also was employed solely *10as an attorney to prosecute the claim in the bankruptcy court.

Neither Dickinson nor his associate had any authority to sell or dispose of his client’s claim. The buyer knew this, or is presumed to have known it, but it is said that the New York attorney was held out as an agent with power to sell. There is nothing in the record to prove this, and the finding below was to the contrary. A man cannot lift himself by his own boot straps; and an agent does not acquire authority by holding himself out as having it.

The appellants contend that the buyer ratified Schelker’s letter of March 31, 1937. The court below found, upon undisputed evidence, that the seller never had any knowledge of this letter and did not ratify it. An appellate court cannot rightfully set aside such finding; but, if it should undertake to do so in this case, it would be met with the statute of frauds, because the written memorandum of the contract relied upon by appellants was not complete in itself, since essential matters were left open for further consideration.

It seems to be conceded that this was a Florida contract and that the Florida law governs; but how do we know it was a Florida contract when everything the appellants rely upon to complete the agreement was done in New York? The writing is silent as to the time and place of payment and delivery. The law would imply a reasonable time, but it could not imply anything as to the place when the parties were so widely separated. The buyers demanded delivery in New York, and offered to make payment there if a sight draft were drawn upon them “attached to properly executed assignment of claim duly presented at our [their] office.” R. p. 95. If the contract was made in New York, and called for payment and delivery in New York, it was a New York contract.

The seller might have been led into a sale before finding out about the cash payment but for the fact that, when the time came to complete the contract, the buyer requested an assignment containing all kinds of warranties. This the seller refused to execute, but submitted a new form, which the buyer declined to accept. Pending this disagreement as to the form and substance of the assignment, the seller learned that there was to be a cash payment of $250 in addition to the securities, and refused to go any further with negotiations. This refusal was communicated to the buyer before acceptance of the new form that had been submitted.

I think the judgment appealed from should be affirmed.