Citation Numbers: 96 A.D. 401, 89 N.Y.S. 222
Judges: Laughlin
Filed Date: 7/15/1904
Status: Precedential
Modified Date: 1/13/2023
The plaintiff was a corporation engaged in the manufacture and sale of storage batteries. Its plant was in the city of Chicago. In the latter part of February, 1901, the General Carriage Company, a corporation engaged in the business of letting electric automobiles for hire in the city of New York, negotiated the purchase of five Ho. 3 storage batteries of the plaintiff, the purchase price of each being $498. The appellant Orlando F. Thomas, the treasurer of the General Carriage Company, conducted these negotiations in its behalf. He and the appellant Post were then copartners as stockbrokers under the-firm name of Thomas & Post. The General Carriage Company desired to make the purchase subject to trial and on credit. The information which plaintiff had concerning the financial condition of the General Carriage Company rendered it inadvisable to make the sale on these terms, and its representative so stated to Thomas, and suggested that if the firm of Thomas & Post would guarantee the payment the plaintiff would make the sale. Thomas agreed that such guaranty would be given by his firm. By the terms of sale the batteries were to be paid for at the expiration of
“ New York, March 2, 1901.
“ Messrs. Thomas & Post,
“ 71 Broadway, N. Y.
“ Gentlemen.— In accordance with our understanding with you, we have shipped the General Carriage Company five of our Ho. 3 Storage Batteries. These batteries are our-property and are to remain so until paid for, it being understood that you agree that we shall be paid for these .five batteries at the rate of $498.00 each delivered in New York, sixty days after date of shipment, providing the batteries are at that time in good operative condition. Kindly confirm this understanding to 197 Water Street, New York.
“ Yours truly,
“ HELIOS-UPTON CO.
“ King Upton.”
Thomas & Post replied as follows :
“ New York, March 6, 1901,
“ Helios-Upton Company,
“ 197 Water St.,
“New York City.
“ Gentlemen.— We are in receipt of your favor of March 2nd regarding purchase of five No. 3 sample batteries, and your understanding is the same as our own.
“ Yours truly,
“ THOMAS & POST.”
It is alleged that the batteries were in good operative condition after the expiration of sixty days and that the General Carriage Company refused and neglected after demand to pay therefor. The plaintiff seeks to recover the value of the batteries, together with interest, of'.the members of the firm of Thomas & Post upon the contract evidenced by these letters. The appellants contend that the contract does not constitute a sufficient memorandum in writing to take the case out of the operation of the Statute of Frauds and is
We are of opinion that the action might well have been maintained on the theory that this was an original promise and that the judgment could be sustained upon that view. However, considered as a contract of guaranty, the memorandum in writing was sufficient within the Statute of Frauds (Laws of 1897, chap. 417, § 21). The written contract is not without consideration or invalid merely because the property had been delivered prior to its execution. The parol contract to give a guaranty was made prior to the shipment, and it having been subsequently reduced to writing to enable proof thereof to be made, that is sufficient. (Ward v. Hasbrouck, 44 App. Div. 32; Oppenheim v. Waterbury, 86 Hun, 122 ; Smith v. Molleson, 148 N. Y. 241.) The consideration, although not definitely stated, may fairly be inferred from the written contract. It is manifest that it was a guaranty of payment and not of collection, so that the plaintiff was not obligated to proceed against the General Carriage Company.
The principal contention of the appellants is that the rule of strictissimi juris, applicable to the construction of contracts of surety and guaranty, relieves them from liability unless the batteries at the expiration of the period specified were in fact in good operative condition, even though their not being so was attributable solely to misuse by the purchaser. If they are right in this contention the judgment cannot be sustained,, for it. is undisputed that at the expiration of sixty days the batteries were not all in good operative condition. The learned counsel for the respondent rightly contends that this would be an unreasonable construction of the contract. The storage capacity of the batteries was 100 amperes, said to be sufficient to propel an. automobile of size suitable for the battery twenty-five miles. The. evidence on the part of the plaintiff showed that the batteries, having been properly tested and found to be of the required capacity, were shipped in good order, and if properly used would have remained in good order for a much longer period than sixty days —in fact, for a year or more. The representatives of the General Carriage Company were verbally informed that the batteries should be charged and recharged at an amperage not greater than twenty-five amperes per hour, and of the destructive
The point is also taken that the plaintiff, having alleged that the batteries were in good working order at the expiration of the trial period, cannot be permitted to recover on the theory that they were not, but that it was through no fault of the plaintiff. Some of the evidence was received without objection on this ground being taken, but finally appellants objected, and I think they preserved their right to present the point. The complete answer to it is, however, that the batteries were in good working order within the intent and. meaning of the contract, that is, so far as their manufacture and practicability were concerned.
The appellants also claim that the time for performance óf the original contract was extended by the parties without their knowledge or consent. This was also a question of fact, depending upon conflicting testimony which was submitted to the jury.
If follows that the judgment and order should be affirmed, with Costs.
Van Brunt, P. J., Patterson and McLaughlin, JJ., concurred ; Ingraham, J., dissented.
Judgment and order affirmed, with costs.