Citation Numbers: 46 Misc. 280, 94 N.Y.S. 253
Judges: Cochrane
Filed Date: 2/15/1905
Status: Precedential
Modified Date: 1/13/2023
The plaintiff’s testator, Abram L. Schermerhorn, died August 9, 1903. Prior to his death the defendant at different times advanced to him cash and merchandise amounting to $527.50. These advancements were made under an agreement, made in the latter part of 1902, that, when the crops and farm produce of said Schermerhom for the year 1903 should mature and be ready for market,
After the death of the testator his executrix, the plaintiff herein, delivered to the defendant the farm produce, which was sold by the defendant for the sum' of $1,279.65, after deducting therefrom the freight and commissions to which he was entitled. The defendant has paid this-amount to the plaintiff, except the said sum o-f $527.50 advanced to the testator in his lifetime, as aforesaid, which he declines to pay,' and for the recovery of which this action is brought. The estate of the deceased is insufficient for the payment in full of his indebtedness.
If the property had been delivered by the testator under and pursuant to the agreement above referred to, the title to such property would have vested in the defendant, and he could hold the same or the proceeds thereof for the payment of the advances made by him thereon. Bailey v. Hudson R. R. R. Co., 49 N. Y. 70; Cayuga County Rational Bank v. Dianiels, 47 id. 631; Grosvenor v. Phillips, 2 Hill, 147; Bank of Rochester v. Jones, 4 N. Y. 497; Chapman v. Kent, 3 Duer, 224.
In this case, however, no part of the property had been delivered at the time of the testator’s death. Although he had agreed to deliver it to the defendant and had procured advances thereon on the strength of such agreement, the contract was merely executory. The defendant had no title to the property at the time of the testator’s death, and the latter, if he had lived, had the power to do with it as he pleased, subject, of course, to his liability to the defendant for a breach of contract.
In Bailey v. Hudson R. R. R. Co., 49 N. Y. 70, the court, in speaking of a contract such as exists in this case, said: “ The parol agreement is executory, the title remains in the consignor, and he has the power to transfer the property to whomsoever he pleases, and render himself liable
It does not appear that the plaintiff, when she delivered the property to the defendant, did so in pursuance of the contract of her testator. She knew that the latter was indebted to the defendant, but there is no evidence that she knew of the agreement as to the delivery of the property or that such indebtedness had been incurred on the strength of such agreement. It appears, on the contrary, from the testimony of both parties, that a conversation took place with the plaintiff after the testator’s death, in which conversation no reference was made to the agreement which had been made by the testator, and, as a result of this conversation with the plaintiff, she delivered the property to the defendant. It must he held, therefore, that the plaintiff, in delivering the property to the defendant, did not intend to deliver it in pursuance of her testator’s agreement so to do-. In fact, as above stated, there is no evidence that she knew of any such agreement.
In Grosvenor v. Phillips, 2 Hill, 147, it was said by the court: “I see no reason why we should not expound the doctrine of transfer very largely upon the agreement of the parties, and upon their intent to carry the substance of that agreement into execution.”
In Cayuga County Rational Bank v. Daniels, 47 N. Y. 631, it was said: “ The conduct of Gutchess & Co. in taking the bill of lading from the captain of the boat and delivering the same to the plaintiff and procuring the discount on the credit thereof, shows that they did not intend to deliver the property to the carrier with intent to vest the title absolutely in the defendants, but only upon condition that they accepted and paid the drafts to be drawn against it. In some of the cases some weight appears to have been given to a previous agreement, of the owner to ship the property to the
In the Bailey case, 49 N. Y. 70, it was said: “ It must appear that the delivery was made with intent to transfer the property.” And again (at p. 77) : “ The recent case of The Cayuga County Rational Bank v. Daniels * * * was decided against the consignees upon the distinction above referred to. It was held in that case that the consignors did not deliver the property to the carrier with the intention to vest the title in the defendants, except upon condition of paying a draft discounted by the plaintiffs, and that the bill of lading was delivered upon that condition, and that on the defendants’ refusal to comply with the condition, they acquired no right or title to the property, and that the case therefore came within the principle of the Bank of Rochester v. Jones (supra).”
Eor do I think she was at liberty to carry out such contract even had she been aware of its existence. As the representative of her testator’s insolvent estate, it was her duty to conserve the interests of all the creditors and .not t» so administer the estate as to work a preference in favor of any creditor, no. matter how meritorious his claim might be.
On December 15, 1903, the defendant delivered to the plaintiff an itemized statement of the account, which, after deducting -the amount involved in this action, showed a balance in favor of the plaintiff of $329.20, and for which balance the defendant gave to- the plaintiff his check, which was retained and collected by her. It is now claimed by the defendant that this constituted an accord and satisfaction. This contention is not well founded. Although the plaintiff accepted the check and used it, she asserted her rights and insisted that the advancements made to the testator could not be retained by the defendant. The defendant simply paid the portion of his indebtedness as to which there was no dispute. The portion in dispute was of a fixed and definite amount, and no part thereof was included in the check. There is nothing in this case which shows that the plaintiff intended to extinguish or did extinguish her claim against the defendant which is involved in this action. Eo receipt was given; nor was the check delivered or accepted in full payment; nor did the defendant accompany the check with a condition that it should be received in settlement. On the contrary, it appears from the testimony of one of the witnesses, which is not contradicted by the defendant, that the latter agreed, at the time of the delivery of the check, to “make it right” if it turned out not to be right; and the
The plaintiff is entitled to judgment for $527.50, with interest from December 15, 1903, and costs, not including an additional allowance.
Judgment for plaintiff.
See Fuller v. Kemp, 138 N. Y. 231.