Butts v. Perkins , 1864 N.Y. App. Div. LEXIS 49 ( 1864 )

By the Court, Balcom, J.

Straight was to pay the defendant $26.50 for the tomb-stones upon delivery at his shop. But as the defendant was indebted to the plaintiff upon the note in question, he agreed with the latter that he might receive pay of Straight for the stones, and apply the amount thereof upon the note, and the defendant then delivered the stones to the plaintiff. Straight had previously consented that the parties might make this agreement, and had notice that it was made, and assented to it when the plaintiff took the stones to him, which was within a day or two after such agreement was made. It bound him as well as the parties to the action, for Harrington had paid him for the stones. All this occurred in October, 1855, which was more than six years prior to the time the action was commenced.

The effect of the transaction was to substitute Straight in place of the defendant, as debtor to the plaintiff, for the price of the stones, and it operated in presentí as a payment of such price upon the note. (See Davis v. Spencer, 24 N. Y. Rep. 386; Gardner v. Callender, 12 Pick. 374; Eaves v. Henderson, 17 Wend. 190; Read v. Hurd, 7 id. 408.)

The plaintiff could have maintained an action against Straight for the price of the stones. (See Barker v. Bucklin, 2 Denio, 45; 4 id. 97; Lawrence v. Fox, 20 N. Y. Rep. 268.)

He could not have avoided applying such price upon the note, even if he had failed to collect it of Straight,

It was immaterial to the defendant whether the plaintiff could or should collect the price of the stones of Straight. He parted with the possession of the stones in part payment of his note, and as he delivered them to the plaintiff upon a new agreement with him, he parted with all right of action therefor against Straight or Harrington.

There was a sufficient consideration for this agreement, moving from the defendant; for the presumption is that he would not have delivered the stones to Straight or Harrington without being paid down for them.

Suppose the plaintiff had sued the defendant upon the note the next day after the stones were delivered, he could not have avoided allowing the price of the stones as a payment upon the note on the ground that Straight had not paid the same to him. He would have been told that the price of the stones was due from Straight to him and not to the defendant.

Straight was not in any sense the agent of the defendant in paying for the stones to the plaintiff; nor was the latter in any sense his agent in collecting such pay of Straight. Both acted as principals, and were principals in the transaction, after the agreement was made that entitled the plaintiff to the price of the stones from Straight, and bound the latter to pay it to the former.

The agreement canceled $26.50 of the defendant's indebtedness on the note as of the date of the delivery of the stones, and the plaintiff should have indorsed the $26.50 on the note as of that date, though he did not receive the same of Straight until the first day of April in the following year. (See authorities cited, supra.)

Ho reason has been assigned for the delay of the plaintiff in collecting the price of the stones of Straight; and for aught that the case shows, there was no good reason for such delay. Straight was able to pay for the stones, and he did not request the plaintiff to wait or extend the time of payment. Hence if there had not been such a consideration moving from the defendant, as to shift the risk from him to the jdaintiff, of Straight paying for the stones, it would have been the duty of the plaintiff to collect pay for the stones of Straight at the time he delivered them, or to have refused to deliver them unless paid therefor; and in that case the reasoning of Sutherland, J. in Read v. Hurd, (supra,) would apply. He there said: “ It does not appear whether the price of the steer was to have been paid immediately by Skiff, or whether the sale was upon credit. If no credit was given, it may admit of very serious question whether, as between the plaintiff and the defendant, the payment must not be considered (so far as the question of the statute of limitations is concerned) as made when, by the terms of the agreement between Skiff and Bead, it ought to have been made. If not, then it was in the power of Skiff at any period, no matter how remote, to have revived this note, by a payment to the plaintiff.”

If this reasoning is sound, and we continue the supposition that the risk of Straight paying for the stones remained with the defendant, it is clear that it was the plaintiff’s duty to require Straight to pay for the stones when he delivered them to him, or to Harrington for him; and as the price ought then to have been paid by Straight and received by the plaintiff, it should be considered (so far as the statute of limitations is concerned) as made and received at that time. If not, then it was in the power of Straight to revive the note in question, at any time, however remote, by the payment of the price of the stones to the plaintiff.

[Broome General Term, May 10, 1864.

My conclusion is that the defendant cannot be regarded as consenting to the indorsement or application upon the note of the $26.50 as of the 1st day of April, 1856, when the same was paid by Straight to the plaintiff; and that such sum must be deemed to have been paid and should be applied upon the note as paid by the defendant in October, 1855, which was more than six years prior to the time the action was commenced.

The judgment should therefore be affirmed, with costs.

•Decision accordingly.

Campbell, Parker, Mason and RoZcom, Justices.]