Phair v. L. Figueiredo S. A.

Peck, P. J.

(dissenting). I dissent and vote to affirm. It is clear upon the evidence, in my view, that defendants were not the purchasers of the flour, as originally claimed by plaintiff and testified by her principal witness, or the equivalent thereof as underwriters of the sale and of payment by the purchaser. Plaintiff now concedes that her claim that defendants were the purchasers is not supported by the evidence and that claim has been abandoned. To my mind the like claim that defendants were the guarantors of payment by the purchaser is equally untenable.

The documents are somewhat confusing. But the sense and substance of the arrangement between the parties sufficiently emerges. Defendants undertook to receive from the purchaser security for its performance and to hold the security until the purchaser had made payment. Defendants also undertook as a matter of mechanics, required by foreign exchange incidents of the transaction, to act as paying agents of the purchaser. Defendants acted only in a collateral capacity and not as principals.

Undoubtedly payment would have been made by the purchaser through defendants except for the happening of the unexpected — intervention by the Brazilian Government, seizing the flour as contraband, and preventing consummation of the sale. The rights and obligations of purchaser and seller in this situation are undetermined and not involved in the present case. Indeed plaintiff seeks to avoid litigation and adjudication of this issue, by asserting an absolute liability of defendants regardless of the position taken by the buyer that it is not liable because of failure of consideration.

I think that plaintiff’s claim is against the buyer and perhaps against the Brazilian defendant on another theory to recover the security deposit. There is no primary liability on the part of defendants such as plaintiff asserts in this case.

Breitel and Bastow, JJ., concur with Callahan, J.; Peck, P. J., dissents and votes to affirm in opinion, in which Botein, J., concurs.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event. Settle order.