Glass testified that Levine called him back and said that his books showed that no transaction or sale of December wheat had been made for him. Glass further testified that about November 23d he again called Levine on the telephone and said to him:

"If you say I am long on wheat, you had better sell me out; I want to take another position. Make sure that you did not sell the same contract twice."

Glass testified that thereafter, and about November 23d, the 10,000 bushels of December wheat which he was long with the plaintiffs was sold, closing his account with the plaintiffs. When Glass gave his order to sell the 10,000 bushels of December old wheat and to give up the plaintiffs therefor, he had a right to believe that, in the ordinary course of business, his directions would be carried out. He believed that his directions were followed when he had the above-quoted conversation over the telephone with the plaintiff Levine. When Levine informed him that plaintiffs had no record of any such transaction, he had a right to assume that the transaction had not been carried through as he had been notified by Baruch & Co., and that the defendants appellants had failed to give the usual notice thereof to the plaintiffs. He thereupon directed that his account with the plaintiffs be closed out.

Disregarding the finding of the trial court that the defendants appellants did not give to the plaintiffs due and timely notice of the transaction, the defendant Glass can in no way be held responsible for the loss which occurred. Glass was long 10,000 bushels of wheat at the time that he ordered the sale of that quantity. When he was informed by Baruch & Co. that such sale had taken place, he had a right to assume that his position with the plaintiffs, with whom his account stood, was even. As the court found that the defendants appellants, who had given up to the extent of 10,000 bushels, did not notify the plaintiffs of the sale, the loss, which took place by the defendants appellants thereafter covering the sale by purchasing in the last days of December 10,000 bushels of wheat, must be borne by them. If, in fact, Cohen & Co. did notify the plaintiffs, as they claim, and the plaintiffs neglected to record the transaction and charge to the account of Glass, then the plaintiffs should stand the loss.

The only question, therefore, is whether the plaintiffs or the defendants appellants should bear the loss, and the court, as I have said, upon sufficient evidence has held that no such notice was given by the defendants appellants to the plaintiffs respondents. Therefore the de

(227 N.Y.S.)

fendants appellants must suffer the loss for which their failure to give notice of the transaction to plaintiffs was alone responsible. We think the trial court improperly declined to adjudicate the rights as between the defendants Cohen & Co. and the defendant Glass, and that in addition to the declaratory judgment rendered the court should have found and decided that the defendant William W. Cohen & Co. should alone bear the loss sustained by them.

The provision of the judgment to the effect that the liability, if any, by virtue of the facts found in the decision made herein is at law between the defendant William W. Cohen & Co. and the defendant Glass for a breach of duty should be stricken out, and in place thereof the judgment should provide that the defendants appellants have no recovery against any other party to the action, and that the plaintiffs respondents have the costs of the action and the costs and disbursements of this appeal against the defendants appellants.

Judgment modified, as directed in opinion.

DOWLING, P. J., and MCAVOY, J., concur.

PROSKAUER, J. (dissenting). I agree with the majority of the court that the trial justice should have determined the controversy between Cohen & Co. and Glass. I dissent from the holding that as between these parties the loss must be borne by Cohen & Co. It should be borne by Glass.

Cohen & Co. sold 10,000 bushels of wheat on behalf of Glass. Glass would have been entitled to the profit, if any, and is required to bear the loss on this transaction, unless Cohen & Co. have absolved him from this obligation. I assume the correctness of the finding of the trial court that Cohen & Co. failed to give notice of the sale to Sartorius & Smith. It is undisputed, however, that notice of the sale by Cohen & Co. was given to Glass. Glass desired to be even with the market. At the moment he received this notice he was necessarily even with the market, whether Cohen & Co. notified Sartorius & Smith or not. If Cohen & Co. had properly notified Sartorius & Smith that the sale made by them was in effect the sale of the 10,000 bushels of wheat held by Sartorius & Smith for Glass, the two transactions were matched, and Glass was neither long nor short of the market. If, as found below, they did not give the notice to Sartorius & Smith, Glass was still even with the market, for he was long 10,000 bushels with Sartorius & Smith and short 10,000 bushels

227 N.Y.S.-3

with Cohen & Co. If he did nothing, he could neither make nor lose. When the time for delivery came, Cohen & Co. would have demanded coverage from Glass, and he would have again instructed them to cover with the 10,000 bushels held for him by Sartorius & Smith. In this situation, Glass interfered and caused his own loss. Being told by Sartorius & Smith that they had received no notice of sale from Cohen & Co., he made no inquiry whatever of Cohen & Co., though he had been advised that they had sold for his account. Taking all the risk himself, he arbitrarily ordered Sartorius & Smith to sell the 10,000 bushels held by them for him. The damage which he suffered thereby was not caused by the omission of Cohen & Co. to notify Sartorius & Smith of their sale; it was caused by the independent act of Glass in ordering Sartorius & Smith to sell their 10,000 bushels, when he had already been told that Cohen & Co. had sold 10,000 bushels for him. His second sale of 10,000 bushels of wheat, therefore, was made deliberately by him, and the loss should fall on

him.

For these reasons the judgment should be modified, by declaring that Glass is liable to Cohen & Co. for the amount of their loss upon the coverage of their sale of 10,000 bushels of wheat.

Supreme Court, Appellate Division, Second Department. January 13, 1928.

1. Specific performance 30-Consideration for wife's agreement to deed to husband lot on which he should build house held too indefinite for specific performance.

Contract between husband and wife, she to deed him lot, on which he should build house for consideration to be paid little at time as he earned money, held too indefinite as to consideration to be specifically enforced.

2. Frauds, statute of 129(12)-Husband's erection of house held insufficient performance to take wife's oral agreement to convey out of statute (Real Property Law, § 259).

Husband's erection of house on wife's land, in which they lived together for many years, and payment of taxes and other carrying charges on adjoining property standing in wife's name, held insufficient as For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(227 N.Y.S.)

performance by husband to take wife's oral agreement to convey property to husband for specified sum on demand out of statute of frauds (Real Property Law [Consol. Laws, c. 50] § 259); such acts not be ing unequivocally referable to the oral agreements, but explainable as performance of husband's marital duty.

Action by Samuel H. Marsh against Eva Regina Marsh, an adjudged incompetent, by Abraham L. Doris, committee. Judgment for plaintiff, and defendant appeals. Reversed on the law and facts, and complaint dismissed.

The plaintiff by this action seeks to compel his wife, an adjudged incompetent, to convey to him two parcels of real estate, because of agreements which he says were made between them orally. He claims that the first agreement was made on or about June 25, 1914, and the second on or about January 15, 1920. The defendant, through her committee, pleads the statute of frauds and the statute of limitations.

There are two parcels of land involved in this action. In the first cause of action the plaintiff alleges an oral agreement to purchase from his wife. In the second cause of action the plaintiff alleges a purchase by him from his wife's sister and an oral agreement by his wife to take title in trust for him. The defendant's mother gave to her in 1914 about an acre of land. The plaintiff said to his wife that "he didn't want to live on somebody else's [his wife's] land," and would not build a home on the property unless his wife promised to give him a deed. This was the basis of an alleged agreement by the defendant to give the land to her husband for the sum of $975, which was to be paid "a little at a time as he earned the money,' and it is upon this alleged contract that the first cause of action is based. The plaintiff says he erected a house upon the land, entered into a building contract, and he puts into evidence a contract by the defendant with the builders, whereby his wife agrees to pay them $2,585 to build the house. The plaintiff's signature appears on the agreement as a witness. The plaintiff offered no receipts by the defendant, but put in evidence a bank book of the Emigrant Industrial Savings Bank of New York City, showing five deposits by the defendant, totaling $950, and claims that these deposits evidence payments made by him for the property. The plaintiff claims these deposits, made over a period of seven years, represent payments by him for the property, deposited by the defendant in compliance with his request that she deposit the payments in that particular bank and none other. The bank book shows that the first deposit was made nine months after the alleged agreement. The second deposit was made five years later.

This action was commenced in April, 1926, five years and three months after the last deposit, more than ten years after the house was built, three years after the plaintiff left his wife, and after she had been adjudged incompetent and committed to Central Islip.

The second cause of action is based on the fact that in 1920, six years after the first alleged agreement, the defendant's sister conveyed to the defendant a parcel of land adjoining the parcel involved in the first cause of action. Plaintiff alleges, with reference to this parcel, that he contracted with de

fendant's sister to purchase this property for $200, and that he and the defendant agreed that title be taken in the name of the latter, and that she would hold the property in trust for him, and would convey the premises to him on demand. The plaintiff also alleges with respect to this parcel that he paid the taxes and all other carrying charges and expenses. The parties lived in the house together for many years.

Argued before LAZANSKY, P. J., and RICH, KÄPPER, SEEGER, and CARSWELL, JJ.

Abraham L. Doris, of New York City, for appellant.
Irwin Isaacs, of New York City, for respondent.

PER CURIAM. Judgment reversed upon the law and the facts, with costs, and complaint dismissed, with costs.

[1, 2] The consideration of each alleged oral agreement is too indefinite to sustain such an agreement. The acts relied upon as part performance are insufficient to take the alleged oral agreements out of the statute of frauds (Real Property Law [Consol. Laws, c. 50], § 259). They are not unequivocably referable to the oral agreements. The husband's marital duty explains them, they being a performance of the husband's duty to furnish a habitation, for which in other circumstances he necessarily would pay rent, and which habitation the husband was obligated to furnish the wife. Cooley v. Lobdell, 153 N. Y. 596, 47 N. E. 783; Woolley v. Stewart, 222 N. Y. 347, 118 N. E. 847; Burns v. McCormick, 233 N. Y. 230, 135 N. E. 273. Findings of fact and conclusions of law inconsistent with this memorandum are reversed, and new findings will be made in accordance herewith.

Settle order on notice.