The opinion
S;iít'.víAX, Circuit Judge.
I dissent from the conclusions of the majority of the court with respect to the Invalidity of the contract under the statute of frauds of the state of New York. Vantine & Co. became in name a corporation, but continued to be managed as a partnership; Colton being called the general manager upon an annual salary of $10,000. Differences of opinion in regard to the proper business synem for the successful financial management: of the corporation rook place between the two managers, which resulted in the agreement of August :5, 1898, which the verdict of the jury declares was entered into. In this oral agreement the parties, using the language of business men, spoke of the interest of Colton in the concern of Vantine & Co., and of the method of ascertaining the value of the interest, as though it was still a partnership, while in legal effect the agreement: was for the purchase by Eaymond of Colton’s equitable in-feros ( in his shares of stock, which Eaymond already held as collateral and for the purchase by Colton of the goods. Colton was to receive payment for his one-fourth “interest” in the corporation in goods, ami, in addition to his sale of stock, was to resign as general manager and from his other official positions, and was to procure and furnish the lesignation of his brother, who was the business manager in Japan. These resignations were a part of the consideration of the purchase by Eaymond. In the brief language which was used, ’Colton was to “get out” of all participation in Vantine & Co., and could establish himself anew with the capital in goods which he brought from the corporation. The agreement was. as stared in the opinion of the majority, one of barter or exchange, in which each party was the buyer. While this parol agreement was formed, it was yet understood, if Codon’s version of the negotiations is correct, that it might be entirely changed or modified by subsequent agreements, and that the two contracting parties might still remain together; for Eaymond was opposed ro separation, and was strongly in hope of unity. Thereupon,the two parties consulted with each other almost daily until August loth as to the modification of the system of business, if they remained together. Colton, in his testimony, calls the proposed continuance an ‘■option’’ which he would have in case they should agree upon the terms of continuance. He testified that Raymond and he talked nearly every day, quite a portion of the time while Eaymond was *228 in tbe office, in regard to this future co-operation and the proposed changes in business methods which were suggested. “We talked it over continually back and forth on these days.” On August 15th, Colton’s version of the abandonment of the negotiations and the fulfillment of the agreement of August 3d is as follows:
“I asked Mr. Raymond to come to the office. He was on third floor when I first saw him that morning. I said: ‘I wish you would come upstairs. I want to talk to you.’ We went up into his private office. It was in the rear of mine. We went in, and I said: ‘Mr. Raymond, we have been talking ever since we made our trade. You have not come to anything definite. Now, I am going to give you my resignation, my brother’s resignation, and my father’s resignation, in compliance and fulfillment of the trade that we have made; and I want you to give me my quarter interest in the business, as you agreed on that day.’ I handed him three resignations. He took them in his hands, and turned to me with almost tears in his eyes, and said: ‘Charlie, aren’t you a little hasty? Don’t you think you will be sorry for it? Don’t you want more'time?’ ”
Inasmuch, as the resignations were in part the consideration of the defendant’s promise to purchase, and were a part payment of the consideration, iiie majority of the court is of the opinion that as there was no restatement or reaffirmation on August loth of the terms of _ the prior oral agreement, except by implication, and as they were not delivered for the express purpose of complying with the statute, it must be held that there was no part payment at the time of the contract, within the meaning of the statute as construed by the highest courts of the state of New York, and, furthermore, whatever payment was made was made by the seller. The last most authoritative statement of the construction which the highest court of New York has given, to its statute of frauds, to which we have been referred (Jackson v. Tupper, 101 N. Y. 515 , 5 N. E. 65 ), places in compact form the result of the prior cases, commencing with Bissell v. Balcom, 39 N. Y. 275 , and is as follows:
“It is, in substance, field that payment subsequently made, altfiougfi conforming to the oral agreement, is insufficient of itself to make the prior oral agreement valid. There must be enough, in addition to the act of payment, to show that the terms of the prior oral contract were then in the minds of the parties, and were reaffirmed by them; and, this being shown, a cause of action arises, not on the prior oral contract, but on the new contract made at the time of the payment.”
In the case at bar the court charged as follows:
“If your verdict should be for the plaintiff (that is, if you should reach the conclusion that a contract was made whereby he was to receive one-quarter of this interest in Vantine & Co., that quarter to be measured out to him in goods, both the quarter and the goods to be on the basis of the statement of January 1, 1898, and that in consideration thereof he was to resign and get out), and further believe that on the 15th day of August, when he handed his resignation in, that same agreement was practically renewed between the parties, and was present in their minds, so that the resignation which he then handed in was accepted by the defendant as a fulfillment of the contract, and not as a mere voluntary act, — if you reach that conclusion, your verdict will be for the plaintiff, and it will then remain for you to determine the amount of damages.”
The view which. I take of this case, as the result of the verdict of the jury, is: That a parol contract was made on August 3d, which in the minds of the parties was to be a permanent contract, unless abro *229 gated or changed by mutual agreement. That time was to be given and to be used for further negotiations. That time for the next 12 days was occupied in that attempt, which failed, when the parties again met, and Colton said, in substance: “We have come to nothing, new. The old contract is unaltered, and 1 am going to complete my obligations under it, and I wish you to complete your part of it.” Whereupon he gave the resignations of himself and his brother as managers, which were reluctantly accepted by Eaymond, who. instructed the agent in Japan by cable to. “turn over the business.” The history of the negotiations from August 3d has an important bearing upon the meaning of the transaction of August 15th, because that transaction was not merely the payment of part of the consideration. The whole course of the negotiations from August 3d shows that the terms of the contract of that date were continually, until August loth, in the minds of the parties, were understood by both of them on the latter day, and the jury could properly find a reaffirmance of the contract, and that a part of the consideration was, on August loth, accepted by the defendant as a fulfillment of the agreement, and that the acceptance was evidenced by his cablegram to the agent in Japan. At the interview of August loth, negotiations for a change in the contract were abandoned, and each party was compelled to stand in affirmance or in rejection of the prior oral agreement, of barter. The acts of both parties show that it was reaffirmed, and that a part of the consideration to be given by the plaintiff, who was the buyer of the goods, was received and accepted by the defendant.