had the right to convert the account, so the argument goes, plaintiff cannot contend he was damaged by loss of commissions from that conversion. Second, the rate at which commissions were to be paid after February 28, 1989, was to be determined on June 30, 1988 and not the entire June through February period. Since the Gordon account was not part of plaintiff's territory on June 30, he cannot complain of loss of commissions on that account after that date. Third, Feature contends that plaintiff has not met his burden of proof.
Plaintiff responds that the contract and other evidence indicate that the relevant time period for "rates and practices" is June 30, 1988 through February 28, 1989. Thus, his commission (which included the Gordon account before conversion to a house account) could not drop below its levels of that whole period. By refusing to pay him commissions during the second period of the contract on the new house account, plaintiff contends Feature deprived him of his wages.
STATUTE OF FRAUDS
Plaintiff's first theory for summary judgment is that no genuine issue of material fact exists that Feature is bound to the contract between himself and Feature to satisfy the Statute of Frauds. As Feature notes, it is highly unusual for a plaintiff to assert the Statute of Frauds in a motion for summary judgment. The Statute of Frauds is universally a question of law and only a defense to contract enforcement.
Cohrn v. Sadler, 147 A.D.2d 922, 537 N.Y.S.2d 366 (1989). However, the court will resolve the issues attempted to be raised in the pleadings.
The Statute of Frauds cannot be applied unless the court finds a valid, enforceable agreement. See Brooklyn Union Gas Co. v. MacGregor's Custom Coach, Inc., 122 Misc. 2d 287, 471 N.Y.S.2d 470, 476 (1983) (Statute of Frauds only makes an otherwise valid contract voidable). Whether a contract exists in the first place is a question of the intent of the parties. Central States, Southeast and Southwest Areas Pension Fund v. Gerber Truck Serv., Inc., 870 F.2d 1148, 1149-56 (7th Cir. 1989) (en banc) (following Robbins v. Lynch, 836 F.2d 330 (7th Cir. 1988)); Brookhaven Hous. Coalition v. Solomon, 583 F.2d 584, 593 (2d Cir. 1978). It is undisputed that some agreement between Feature and Paist was intended. What is hotly contested is the terms of that agreement as evidenced by the parties' intent.
The court finds a genuine issue of material fact exists as to what the terms of the agreement were intended to be, although there was undeniable an agreement.
Refusing to grant summary judgment on the question of contract terms does not end the court's inquiry here. The court must also consider whether the Statute of Frauds has been satisfied as both parties have raised the issue in one form or another.
The New York Statute of Frauds requires an agreement to be in writing if the agreement is not capable of completion within one year from the date of making.
N.Y. Gen. Oblig. Law § 5-701(a)(1); for Illinois' provision see Ill. Rev. Stat. ch. 59, para. 1. The agreement need not be in one document, it may be found in a series. Goldberg v. Colonial Life Ins. Co., 284 A.D. 678, 134 N.Y.S.2d 865, appeal dismissed, 308 N.Y. 958, 127 N.E.2d 99 (1954). But some memorandum must be signed by the party charged (in this case Feature), and when taken as a whole the documents must reflect the essentials of the agreement. Fort Howard Paper Co. v. William D. Witter, Inc., 787 F.2d 784, 791 (2d Cir. 1986). There is an exception to the signature rule relevant here - performance of the agreement in whole or part. Royal Air Maroc v. Servair, Inc., 603 F. Supp. 836 (S.D.N.Y. 1985) (part performance exception); Meyers v. Waverly Fabrics, Div. of F. Schumacher & Co., 65 N.Y.2d 75, 489 N.Y.S.2d 891, 479 N.E.2d 236 (1985) (full performance exception).
It is uncontested that Feature has not signed the employment agreement. However, two independent items take this agreement outside application of the Statute of Frauds. First, this agreement was at least partially performed by both sides. This by itself is sufficient to meet the Statute of Frauds. See Binenfeld v. Binenfeld, 146 A.D.2d 663, 537 N.Y.S.2d 41 (1989). Additionally, plaintiff points to a letter signed by Feature's president which acknowledges the existence of an employment relationship. Feature contends the letter to be a mistake - sent out by the president's secretary who supposedly forged his signature.
When examined in conjunction with the part performance by both parties, this court finds the Statute of Frauds to be satisfied.
In sum, the court holds that a genuine issue of material fact exists as to what the terms of the Feature-Paist agreement were, although some agreement was certainly intended. However, there is no question that the Statute of Frauds has been satisfied.
The agreement nowhere contains the phrase "house account." Indeed the entire issue of account conversion is omitted from the agreement. Accordingly, it is impossible to tell how the parties intended house account conversion to be handled without resorting to parol. Yet parol evidence does not clarify the matter. Plaintiff argues that he had to be consulted prior to conversion. He cites the conversion of the Zales and J.C. Penny accounts as examples of where the sales agent was consulted. In both cases the agent's approval was required before the change in status was allowed, and Paist presents the affidavit and deposition testimony of the agents to support this claim. These transactions, Paist claims, formed the basis for the "practices" of house account conversion.
Feature maintains that it had an absolute right to convert this account without permission or consultation from the sales agent. They concede that Paist was not consulted prior to conversion. But they dispute that the agent had to be consulted prior to such a change. Otherwise, so runs the argument, the agent would be given a veto of management authority. That is something they allege Paist himself never believed to be the intended "practice," and they cite his supposed admissions to that effect. From the facts before the court, it is impossible to determine, as a matter of law, that the parties intended one particular meaning. This portion of the agreement is ambiguous and, therefore, summary judgment is inappropriate.
RATE OF PAYMENT
Equally unclear is the rate at which commissions were to be paid after February 28, 1989. The contract states that plaintiff would be paid in "accordance with rates and practices as in effect June 30, 1988, through February 28, 1989 . . . ." The parties could have meant that commissions could not drop below the rate as of June 30, 1988 (Feature's position). This is a plausible position if the court were to look at only one portion of one sentence of the agreement. Yet it is also plausible to say that the parties intended the baseline to be the commissions for the entire June 30 through February 28 period (plaintiff's position). At the very least, this paragraph when examined as a whole is subject to such an interpretation. It is impossible to say that one is as a matter of law correct.
In sum, the court holds that genuine issues of material fact preclude summary judgment for either party under Fed. R. Civ. P. 56(c). III
IT IS SO ORDERED.