Atlantic Metal Products, Inc. v. Minskoff 267 A.D. 1002

Appeal by two defendants from a judgment in favor of the plaintiff in an action brought- for the reformation of a written instrument and for damages for a breach thereof when reformed. Judgment modified on the law by striking therefrom the second decretal paragraph. As so modified the judgment is unanimously affirmed, without costs. The agreement was for a sale of goods and was within the Statute of Frauds. (Personal Property Law, § 85, subds. 1, 2; Berman Stores Co. v. Hirsh, 240 N. Y. 209.) There was never any part performance by either party or any down payment made. Such an executory agreement, within the Statute of Frauds, may not be reformed by a court of equity to include therein a material provision omitted therefrom. (Friedman & Co. v. Newman, 255 N. Y. 340; 5 Williston on Contracts, pp. 4356-4358, § 1555; 2 Restatement, Contracts § 509.) However, the agreement as originally written by implication bound appellants to purchase of the plaintiff such of their requirements in the way of goods as were reasonably needed in the course of appellants’ business during the period of the agreement. (Edison El. Ill. Co. v. Thacher, 229 N. Y. 172.) The record shows a clear breach of that implied promise. The trial court, having heard all of the evidence, and appellants not having claimed any right to a jury trial on the subject of a cause of action at law for a breach of the contract, could grant the money judgment which is hereby affirmed. (Civ. Prac. Act, § 111.) That the plaintiff was standing on its right to recover for the breach of the agreement as originally written, was made evident to appellants repeatedly during the trial. Present — Hagarty, Acting P. J., Adel, Lewis and Aldrich, JJ.; Carswell, J., not voting.