App. Div.] First Department, March, 1920. the first part reserving therefrom title in itself to lots 4 and 5. Although the agreement and deed are dated the same day and are acknowledged on the same day it is not stated that they were executed simultaneously, and while inferences of fact are not to be made on a submission we must decide whether the facts stipulated show such a title as the defendant agreed to convey. If, therefore, the facts stipulated, without extension by any inference, do not show such a title, judgment must go in favor of the plaintiff for the down payment because the defendant stands on this submission as sufficiently showing title in him and ability to convey according to the contract. On the facts submitted we cannot say that the agreement, Exhibit " A,” was void and unenforcible. It indicates that the party of the first part thereto owned other land in the vicinity, presumably to the north of One Hundred and Ninety-first street, for otherwise it would not be interested in requiring the party of the second part to improve and deed the street to the city or in requiring the party of the second part to bear any assessment for opening the street. Exhibit "A" may not have been executed simultaneously with the execution of the deed and very likely it was not, for if so lots 4 and 5, which were not conveyed thereunder, would likely have been excluded therefrom. If it had been intended that the deed embraced the only restrictions there is no explanation for the execution and recording of Exhibit "A" or of the execution by the party of the second part of several conveyances subject not only to the restrictions in the deed but also to the restrictions in Exhibit "A." It may be that after the execution of Exhibit "A" an agreement was made between the parties by which the party of the first part was released from conveying lots 4 and 5 on which, according to the stipulation, a dwelling had already been erected, and that it was then agreed that the restrictions with respect to the erection of no buildings other than dwellings on the other lots should be limited to ten years, but this is an inference which we may not draw on a submission. The agreement and deed are, I think, open to a construction that the restrictions in the deed were intended to supplement those in the agreement. It will be observed that the agreement does not require that the residence dwelling should be detached, APP. DIV.-VOL. CXCI. 4 First Department, March, 1920. [Vol. 191. and under it two dwellings might have been built on the line of two lots or with a party wall, whereas, under the deed for the period of ten years, the grantee was restricted to building detached buildings, and that, it may well be argued, was the particular reason for incorporating the restrictions in the deed as a further restriction. It is not necessary to express a definite opinion on this point. It is sufficient that there is reasonable ground for doubt with respect to it. It is quite evident, I think, that it was intended that the restrictions in the agree ment as well as the restrictions in the deed should be operative, for the restrictions in the deed contain no provision with respect to the dimensions of the dwellings, or the cost thereof or the size of the plots on which they were to be erected, whereas those were all provided for in the agreement. The change in the character of the neighborhood does not invalidate the restrictive covenants. The only effect thereof is to preclude a suit for equitable relief for the enforcement thereof. The facts are insufficient, I think, to show that the restrictions contained in Exhibit "A" have ceased to be operative, and if the facts presented are the only material facts the question of law arising thereon is not so free from doubt that it may be held that the defendant has a good and marketable title, and that the plaintiff would not, in taking title incur serious risk of litigation at the instance of others who are not parties to the submission and who would not be bound by the decision made herein, and, therefore, under the well-settled rule, the plaintiff should not be required to take title. (Moore v. Williams, 115 N. Y. 586, 592; Vought v. Williams, 120 id. 253, 257; Irving v. Campbell, 121 id. 353, 358; Anderson v. Steinway & Sons, 178 App. Div. 507; affd., 221 N. Y. 639.) It follows that the plaintiff should have judgment releasing him from liability under the contract on the ground that the defendant's title is not such that he can convey" the fee simple, of the said premises, free of all encumbrances," or a marketable title, and for the return of moneys paid to apply on the purchase price. CLARKE, P. J., SMITH, PAGE and MERRELL, JJ., concur. Judgment directed for plaintiff as stated in opinion. Settle order on notice. App. Div.] First Department, March, 1920. MADDALONI OLIVE OIL CO., INC., Respondent, v. ANIELO AQUINO and Others, as Executors, etc., of GIOVANNI AQUINO, Deceased, Appellants. First Department, March 5, 1920. Sales - action for failure to deliver goods - Statute of Frauds, Personal Property Law, section 85 — admissibility of parol evidence to establish modification, rescission or abandonment of written contract measure of damages. Where a written contract between the plaintiff and the defendant's testator for the purchase of wine f. o. b. Naples, of the value of more than $50, provided for sixty days' credit, and when the wine reached New York the defendant refused to deliver without payment in cash, the court, in an action for a breach of the written contract, properly refused to permit the defendant, who had pleaded only a modification of the written contract, to prove a parol contract, subsequent to the written contract and before the wine arrived in New York, to the effect that the payment should be made in cash, and that the sixty days' credit should be waived. It seems, that notwithstanding the provision of section 85 of the Personal Property Law, it would have been competent to show by parol evidence a rescission or abandonment of the written contract if the defendant had so pleaded, and that the question whether the alleged parol agreement constituted a rescission or abandonment would be one of fact. Since the terms of the contract f. o. b. Naples were not controlling as to the place of delivery, but were simply regarded as fixing the price of the goods, and delivery was demanded in New York and there refused, the plaintiff was properly permitted to prove as a measure of damages the difference in the market value and the contract price in New York. While under section 85 of the Personal Property Law a contract to sell or a sale of any goods or choses in action of the value of fifty dollars or upwards shall not be enforceable by action unless some note 66 or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf," still a contract not in writing is valid for at least some purposes, although it is not "enforceable by action." APPEAL by the defendants, Anielo Aquino and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of December, 1918, upon the verdict of a jury, and also from an order entered in said clerk's office on the 20th day of December, 1918, denying defendants' motion for a new trial made upon the minutes. First Department, March, 1920. [Vol. 191. Since the entry of the judgment and order appealed from Giovanni Aquino, who was the defendant in the action, died and his executors were by order of the court substituted in his place as the defendants in this action. Jacob R. Schiff of counsel [Samuel W. Dorfman with him on the brief; Frank E. Silverman, attorney], for the appellants. Guido J. Giudici, for the respondent. SMITH, J.: This action grows out of a contract between the plaintiff and the defendants' testator for the purchase of 300 barrels of Italian wine. The written contract provided for sixty days' credit. When the wine reached New York the defendant refused to deliver it without payment in cash therefor, and offered to prove a verbal contract subsequent to the written contract and before the wine arrived in New York that the payment should be made in cash and that the sixty days' credit should be waived. Thereafter the plaintiff demanded the wine according to the terms of the original contract. The trial judge refused to allow the defendant to introduce evidence of this oral modification of the written contract upon the ground that the Statute of Frauds required the contract to be in writing and that it could not be altered by parol, and thereupon directed a verdict for the plaintiff for damages resulting from a breach of the original contract by the defendants' testator. From the judgment entered thereupon this appeal is taken. Prior to the passage of the act known as the Sales of Goods Act (Laws of 1911, chap. 571), which added article 5 to the Personal Property Law, the Statute of Frauds made a contract for the sale of goods for the price of fifty dollars or more void unless in writing. (Pers. Prop. Law, § 31, subd. 6.) The statute further contained exceptions which are not material to this controversy. By section 85 of the Personal Property Law (as added by Laws of 1911, chap. 571) the Statute of Frauds was modified in respect of the sale of goods, and it was therein provided: "A contract to sell or a sale of any goods or choses in action of the value of fifty dollars or upwards shall not be enforceable by action unless App. Div.] First Department, March, 1920. some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf." Furthermore, by section 156 of the Personal Property Law (as added by Laws of 1911, chap. 571) an action is defined to include counterclaim, set off and suit in equity. The effect of this amendment would seem to be that the contract, although not in writing, was a valid contract for at least some purposes although it could not be "enforceable by action." The English Statute of Frauds, by section 17, states similar contracts are not " allowed to be good," but by section 4 of the English Sale of Goods Act, 1893, referring specifically to the sale of goods, the language is the same as used in our Personal Property Law at the present time, to wit, that such a contract, unless in writing, shall "not be enforceable by action." (29 Chas. II, chap. 3, § 17; 59 & 60 Vict. chap. 14; 56 & 57 Vict. chap. 71, § 4.) There are but very few cases in the English courts which make note of this distinction. The latest case in the House of Lords (Morris v. Baron & Co., in 1918) is found in volume 87, New Series of the Law Journal (K. B. Div.), at page 145. In that case it is held: "Under section 4 of the Sale of Goods Act, 1893, an agreement which the law requires to be in writing is merely not enforceable by law if not in writing, but it is not invalid for all purposes, and the law as laid down in section 17 of the Statute of Frauds is altered to that extent; and therefore, although a contract required to be in writing cannot be varied by parol, parol evidence is admissible to prove a total abandonment or rescission of a written contract." The court distinguished between a variation of a contract required to be in writing and a total abandonment or rescission of a written contract, and Viscount HALDANE says at page 152: "Accordingly, while a parol variation of a contract required to be in writing cannot be given in evidence, the very authorities which lay down this principle also lay down not less clearly that parol evidence is admissible to prove a total abandonment or rescission. Now there is no reason why this should not be done through the instrumentality of a new agreement which does not comply with the statutory formalities, just as readily as by any other mode of mutual assent by parol. What is, of course, essential is that there should have been made manifest |