Van Gorden v. Sackett , 2 Silv. Sup. 582 ( 1889 )

Merwin, J.

Assuming that the instrument of November 4,1886, was not defective by reason of its failure to designate the name of the buyer, except as it might be inferred from the designation “Seneca Lake Steam-Mills, ” and the name of the agent, Huey, and assuming that the quantity was sufficiently definite for enforcement, still it was not valid without a consideration to support it. In Justice v. Lang, 42 N. Y. 493, it was held that the use in such an instrument of the expression “cash upon.such delivery” implied a promise on the part of the party taking it to pay the price when the goods should be delivered, which promise furnished sufficient consideration for the agreement to deliver. In the same case it was afterwards held in the court of appeals (52 N. Y. 323) that it was a question of fact for the jury to determine whether or not there was a promise to receive and pay for the goods. The present case is not so strong for the buyer as the case cited; for here the words “cash upon delivery” are not in the .paper. There is nothing as to the time or manner of payment. So that if we should assume that the justice, in finding for the plaintiff, found in effect that there was no promise on the part of the defendant to accept and pay, and therefore no consideration for the instrument, it would be questionable whether we ought to disturb such conclusion.

But there is another view of the case. It was competent to show by paroi what the consideration was, and what obligation was, by the bargain, as in fact made, upon the defendant. Chapin v. Dobson, 78 N. Y. 74; Eighmie v. Taylor, 98 N. Y. 294; Juilliard v. Chaffee, 92 N. Y. 535; Benj. Sales, (2d Ed.,) § 232. In this view evidence was given from which the justice had the right to find, as a part of the bargain, that the plaintiff might draw what buckwheat he had, and he would have his pay, without reference to whether the party who owned the rest drew his share. This would not necessarily be inconsistent with the writing, but would relate to the time and manner of payment. If such was the bargain, the defendant, after receiving and keeping the plaintiff’s share, would not be in a position to assert the entirety of the contract, but would be bound to pay for what he received, and resort to his claim for damages, if the balance was not delivered. Ho damages are shown. The judgment should be affirmed.

Hardin, P. J., concurred.