Opinion
January 11, 1973
Appeal from the Onondaga Trial Term.
Present — Del Vecchio, J.P., Marsh, Witmer, Cardamone and Henry, JJ.
Judgment unanimously reversed, on the law and facts, and a new trial granted, with costs to abide the event. Memorandum: On all the evidence adduced, the trier of the facts might find that the parties intended to be bound by an oral agreement arising out of defendant's bid and plaintiff's acceptance of it. The parties may have intended also to execute a written subcontract. The fact that they were to reduce their oral agreement to writing, however, would not affect the binding quality of the agreement pending a writing to be consummated by the signatures of both parties, if the agreement was binding at the time it was made. "Of course if the parties intended to be bound by an oral agreement, a mere failure to reduce their promises to writing would be immaterial" ( Schwartz v. Greenberg, 304 N.Y. 250, 254). The court was in error in refusing to accept plaintiff's offer of proof of the subcontract involving the Schroon Lake project between plaintiff and defendant for the purpose of showing that it was identical in its standard clauses to the contract form sent to defendant with respect to the project here involved. The offer of proof also properly sought to establish that by prior dealings the parties had shown their understanding of the clauses in plaintiff's subcontract form.