Young v. Ingalsbe

Smith, P. J.:

The plaintiff has filed a claim against the defendant’s estate for moneys loaned and for moneys collected by the defendant’s testator in which he had a joint interest as a partner with defendant’s testator, and for the sale of a typewriter of the value of fifty dollars. The learned referee has dismissed the claim upon the authority of a decision of this court upon a prior appeal, reported in 138 Appellate Division, 587. This appeal is upon the judgment roll alone. The evidence is not before us.

As to the claim for moneys loaned and for moneys collected for the partnership, of which the plaintiff and defendant’s testator were members, we decided upon the former appeal that these claims were barred by the Statute of Limitations. Upon that appeal there was evidence of a verbal sale of the testator’s interest in certain law books to the plaintiff in 1906, and an agreement that the price thereof should be applied upon the said indebtedness of the plaintiff. It was sought by plaintiff to avail himself of this sale to prevent the- running of the Statute of Limitations. The books were already in the possession of the plaintiff. There was no evidence of any affirmative act of delivery by the said testator or of acceptance by the plaintiff of said books. We accordingly held that the sale was void by the Statute of Frauds, and being void it did not operate as. a payment which would take the claim out of the' Statute of Limitations. Upon this trial further evidence was offered to the effect that' after this verbal contract of sale the plaintiff assumed possession of such law books, removed the tags that were thereupon' and put his own name upon them. Such acts were, in my judgment, sufficient to constitute an acceptance by him of such law books providing defendant were here claiming the benefit of that sale. The validity of the sale, however, is not here asserted by the defendant but by the plaintiff as against the defendant’s testator, and as against him there was no act of delivery shown which would take the case out of the Statute of Frauds. In Follett Wool Co. v. Utica Trust & Deposit Co. (84 App. Div. 151) an analogous question was presented. In that case the Hamburger Company had possession of some wool belonging to the Follett Wool Company. While it was thus held an oral agreement was made between the Follett Wool Company and the Hamburger Company for the sale and purchase of the wool. Thereupon the Hamburger Company exercised acts of ownership by taking the wool out of their storagé house and storing it in another warehouse in its own name, and pledging the warehouse receipts therefor. Thereafter the Hamburger Company failed and the Follett Wool Company brought an action to replevin the wool from the pledgee on the ground that title had never passed to the Hamburger Company. This court held in that case that if the Follett Wool Company were seeking to recover against the Hamburger Company there was a sufficient acceptance on the part of the Hamburger Company to make it liable to the Follett Company, hut that as against the Follett Company the mere acceptance by the Hamburger Company was not enough to take it out of the Statute of Frauds; that there must have been some positive act either of delivery on the part of the Follett Wool Company or indicating an assent to acceptance by the Hamburger Company. The opinion in part reads: “It will serve no good purpose to attempt to review the numerous authorities where this question has been discussed. It has arisen most frequently in actions by the seller against a purchaser, who, after making an oral agreement for the purchase of goods in his possession, has refused to carry out the agreement on the ground that there had been no change of possession and that he had not accepted and received the goods. This in the absence of proof of some act on his part subsequent to the agreement showing an acceptance of the goods has uniformly been held to be a good defense. It would be a rule out of harmony with the purpose of the statute to hold that when the situation of the parties is reversed and it is sought to charge the seller under such an agreement it is unnecessary to prove any affirmative act on his part showing that the delivery and acceptance of the goods were by his assent. I think the necessity of showing the affirmative act exists in the one case the same as in the other to take the case out of the operation of the statute, and that the rule to be gathered from the authorities is that such act must be one by the party sought to he charged, whether he be vendor or vendee. If this is not so, the Statute of Frauds, which was intended to prevent fraud and perjury, furnishes no protection whatever to an owner of goods against the fraud and perjury of his bailee.” (Citing authorities.)

That decision was made in our own department and would seem to be authority for the proposition that while enough has been shown to constitute an acceptance on the part of the plaintiff if the defendant were here seeking to enforce the contract, nothing whatever has been shown to constitute a delivery on the part of the defendant’s testator when the sale is sought to be enforced by the plaintiff. The mere agreement that the moneys were to be applied upon the indebtedness is not a positive act in any. way constituting a delivery or constituting an assent- to the acceptance by the plaintiff. It is merely part of the verbal contract of sale, which the law has held is not' sufficient to pass title.

A further question is here raised that upon the findings of the referee the interest in the property sold was of the value of only forty dollars. It appears from those findings, however, that for the sale of these law books the plaintiff did in fact credit the defendant’s testator with the sum. of seventy-seven dollars. This must be taken as the price which was allowed upon the sale, and brings the sale within the terms of the Statute of Frauds which applies where the price is fifty dollars or more.

The application of this rule is further objected to- on the ground that it would be inequitable to hold the purchaser bound by a contract which was not held binding upon the seller. If such an inequity exists it exists by the terms of the statute which clearly contemplates that one party may be bound while the other is not. If. there be a writing signed by one party that party is bound while the other party not signing the writing is not bound. The writing need only be signed by the party sought to be charged. It is in analogy with that rule that the courts hold that the party can only be charged who, by some affirmative act, has either delivered or accepted the property sold when the sale comes within the terms of the statute!

We are convinced, therefore, that as to this, claim of the plaintiff the situation has not been changed and that our former decision must control.

As to the sale of the typewriter, however, another question is presented. When the case was before us upon the former appeal there was no evidence of any act on the part of defendant’s testator which could constitute an acceptance of the typewriter. Upon this trial, however, it was shown that while the typewriter was in the possession of the defendant’s .testator it was converted by him and sold. Within recognized authority that constitutes such an acceptance as would make defendant’s testator liable for the value of the typewriter, which has been found to he the sum of fifty dollars.

Upon the findings of the trial court we are of opinion that this court is authorized to direct judgment in favor of the plaintiff for this sum of fifty dollars. The complaint recites a cause of action for the sale of the typewriter. The Special Term has found that the property was not sold when it was first taken by the defendant’s testator from the plaintiff. The fact has been found, however, that it was afterwards converted by defendant’s testator, and further that “the purchase of the typewriter ” was discussed between them. Plaintiff had the right to waive the tort and sue for the value as upon an implied promise to pay therefor. Within the pleadings, therefore, and within the findings of the court a cause of action has been established in favor of the plaintiff for this amount. The judgment should, therefore, be modified by directing judgment for the plaintiff for the sum of fifty dollars, and as so modified .judgment affirmed, with costs to appellant.

All concurred, except Houghton, J., dissenting in opinion in which Betts, J., concurred.