Hunter v. . Wetsell , 1881 N.Y. LEXIS 429 ( 1881 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] We are to assume as facts in this case, from the verdict of the jury, that an absolute contract for the sale of the hops, after they were weighed and baled, was entered into verbally by the parties, by the terms of which the hops were to be delivered where the defendants determined and requested, and were to be paid for within a few weeks upon such delivery, at the rate of fifty cents per pound with $10 additional on the whole lot. Since the quantity of the hops, as baled and weighed, carried the price beyond $50, we held upon a previous appeal that the contract was void within the statute of frauds, because no memorandum in writing was made, no part of the property delivered, and no portion of the purchase-money paid at the time of the transaction. The after payments of $300 we decided to be insufficient to validate the contract, because when made there was no restatement or recognition of the essential terms of the contract. (57 N.Y. 375.) In the case as now presented the difficulty, fatal before, is claimed to have been obviated. There is proof of a restatement of the essential terms of the contract at the time of the delivery of the check for $200. There is proof also contradicting such alleged fact. The question was left to the jury, under a charge from the court which does not seem to be the subject of complaint, and they, in rendering a verdict for the plaintiffs, necessarily found the fact of such restatement. That finding is conclusive upon us.

But it is now objected that, conceding the fact of such restatement, there was no payment of any part of the purchase-money at that time. It is admitted that the check was then given, and it cannot be successfully denied that it was both delivered and received as a payment upon the contract-price of the hops, but it is claimed that the check was not, in and of itself, payment, and having been drawn upon a bank, could not have been in fact paid until afterward, and so there was no payment "at the time" to satisfy the requirements of the statute. It is quite true that a check, in and of itself, is not payment, but it may become so when accepted as such and in due course actually paid. While not money, it is a thing of value, and is money's worth when drawn against an existing deposit which remains until the check is presented. We must assume that the check of the vendee, in this case, was good when drawn and was duly paid upon presentation in the usual and regular way, for it appears in the possession of the drawers, and they practically assert the fact of its payment by their counter-claim in the action, by which they seek to recover back the money so paid. There was, therefore, an actual and real payment made by the vendees to the vendor, upon the purchase-price of the hops. It is said, however, that the actual payment of the money, as distinguished from the delivery of the check, was not "at the time" of the contract, but at some later period. We do not know accurately when the check was paid. It may have been the same day. It may have been within a very few moments. It may not have been till the next day. We are not to presume, for the purpose of making the contract invalid, that it was held beyond the natural and ordinary time. In such event it is a very narrow construction to say that the payment was not made at the time of the contract. The purpose and object of the statute should not be forgotten. Its aim is to substitute some act for mere words, to compel the verbal contract to be accompanied by some fact not likely to be mistaken, and so avoid the dangers of treacherous memory or downright perjury. The delivery of the check was such an act. Indeed, it would be an entirely reasonable and just construction to say that the delivery of the check and its presentment and payment constituted one continuous transaction, and should be taken as such without reference to the ordinary delay attendant upon turning the check into money. The statute does not mean rigorously, eo instanti. It does contemplate that the contract and the payment shall be at the same time, in the sense that they constitute parts of one and the same continuous transaction. We think, therefore, there was a payment "at the time," within the meaning of the statute, and that the contract of sale was valid. (Artcher v. Zeh, 5 Hill, 200; Hawley v. Keeler, 53 N.Y. 114; Bissell v. Balcom, 39 id. 275.)

It was further objected to the recovery that there should have been a tender of the hops. There was an offer to deliver. The place of delivery was to be named by the purchaser. He was informed, after the hops were weighed and baled, that they were ready for delivery. The vendor stood in the attitude of readiness to perform. He had done all that he could do until the vendee named the place of delivery. We think there was a sufficient offer of performance to enable the vendor to maintain his action for the purchase-price. (Story on Sales, § 314.)

No error was committed as to the measure of damages. The jury awarded to the plaintiffs the purchase-price, less the payments received. The case was not one of a merely executory contract in which the title had not passed. The vendor stood in the position of such complete performance as entitled him to recover the contract-price as his measure of damages. That the property was perishable does not alter the situation. He was not bound to sell the hops at auction after due notice and on account of the vendee. He might have done so, but was at liberty to abandon the property, treat it as the vendee's, and sue the latter for the price. (Pollen v. Le Roy, 30 N.Y. 556.)

The evidence as to the fall in the price of hops was not erroneously admitted. (Lefler v. Field, 52 N.Y. 621.) It was drawn out upon a cross-examination of the defendant. A question of fact had arisen in the case. The defendant contradicted, as a witness, the evidence given on behalf of the plaintiff as to payment upon the hops and a restatement of the contract. The truth was to be sought by the jury from the evidence of witnesses who sharply disagreed. Both could not be right. One was certainly wrong, either innocently or willfully. To aid a discovery of the truth, it was quite proper that the jury should understand the interest of the party testifying. It is true that in this case the defendant had been called by the plaintiff as a witness to prove the single fact of the payment of the check. Then followed a motion for a nonsuit, and after that the defendant was called in his own behalf and thereafter subjected to cross-examination. The objection to the inquiry as to the fall of price was not put upon any ground relating to the calling of the witness by plaintiff, but was merely that the proof was immaterial and irrelevant. The objection was not sound. It would not have been sound if founded upon the idea that plaintiff could not impeach his own witness. It is true that by calling him he represented him as worthy of belief, and was not at liberty to impeach his general reputation for truth or impugn his credibility by general evidence tending to show that he was unworthy of belief. That was neither the purpose nor effect of the evidence. Plaintiff was at liberty to contradict him as to the particular fact of there having been no restatement (Thompson v. Blanchard, 4 N.Y. 311), and this not only when it appeared that the witness was innocently mistaken, but even when the evidence might collaterally have the effect of showing that he was generally unworthy of belief. (Lawrence v.Barker, 5 Wend. 305; McArthur v. Sears, 21 id. 190;Williams v. Sargeant, 46 N.Y. 481.)

The interest of a perfectly credible and innocent witness may and often does color his recollection and mold and modify his statements, sometimes even insensibly to himself. The fact of such interest, where there is a contradiction in the evidence, is a proper subject for the consideration of the jury.

We discover, therefore, no error committed on the trial of this case and the judgment should be affirmed, with costs.

All concur, except DANFORTH, J., dissenting, and RAPALLO, J., absent. FOLGER, Ch. J., concurring in result.

Judgment affirmed.