5 N.Y.S. 696 | N.Y. Sup. Ct. | 1889
Lead Opinion
The verdict was recovered for the difference between the amount obtained upon a sale at auction of cloakings, contracted to be sold by the plaintiffs to the defendants, and the price for which they were to be received. For a quantity of the cloakings it was held- by the court that the plaintiffs were not entitled to recover, for the reason that the contract of sale for that quantity was within the statute of frauds. As to other quantities, they were received and paid for by the defendants, but the residue included within the contracts of sale was refused, although they were offered and tendered to the defendants during the month of October, 1886. The bills, it was agreed, should be dated on the 1st of October of that year, although the contracts for the sales were previously made and entered into, and the indebtedness was finally to become due in 60 days from the 1st of October, 1886. After the goods which were refused, were in this manner tendered to the defendants, about the middle of October, 1886, and on the 2d of the following month of December, the plaintiffs gave a written notice to the defendants that they
That there was any irregularity whatever in the sale was not insisted upon, or suggested, by either of these requests. Neither was it suggested that the sale had not been made as expeditiously as under the circumstances the defendants had the right to expect it would take place. But what seems to have been intended, although! it was most obscurely expressed, if, indeed, it was expressed at all, was that the sale of the goods at auction was not binding upon the defendants, and afforded no criterion by which the amount for which the verdict might be rendered could be gouged. It is true that it was held in Pollen v. Le Roy, 30 N. Y. 549, that the sale should be made according to the usages of the trade; but it was not assumed or intimated that the ordinary usages of trade for the sale of merchandise would not justify a sale at auction. The defendants themselves intimated no objection to the right to sell in that manner, or to the justice of the sale itself, in the way of ascertaining the market value of the goods. And in Sands v. Taylor, 5 Johns. 395, on the authority of which this latter case was substantially decided, the sale was made at auction, and it was held by the court to furnish the criterion by which (¡fie amount of the verdict might legally be regulated. In Fisher v Libby, 2 Thomp. & C. 672, the direct question Was presented whether a sale of goods made at auction would bind the vendee as to the amount he should pay by way of damages for the non-performance of the contract of purchase, and it was decided that it would; and no authority appears to have arisen at variance with the correctness of this conclusion. The court may well take notice, as the fact is one generally known and accepted in trade, that a sale at auction in the course of the mercantile affairs of a large city will be the most conformable to usage, and the best adapted to determine the market price for which the goods at the time could be sold. It is true that the sale, to bind the vendee for the difference, should be made within a reasonable time, and that was generally held to be the law in Smith v. Pettee, 70 N Y. 13, and it was so acted upon in Hayden v. Demets, 53 N. Y. 426. But what shall be considered a reasonable time has never been certainly fixed by the authorities. That is to be judged and ascertained by circumstances; and where the party making the sale acts in good faith, and to the best of his judgment, without any unnecessary delay, the price obtained at the sale will be accepted by the court as the value of the goods then sold. Lewis v. Greider, 51 N. Y. 231; Dustan v. McAndrew, 44 N. Y. 72. In the case of Sands v. Taylor, a longer delay intervened than that between the tender of these goods and the time when the auction actually took place. And in Lewis v. Greider, supra, the barley was sent from the interior of the state to the city of New York, and there sold after quite a long period of delay, and the sale was held to be bi nding and operative upon the defaulting vendee. There was evidence upon the trial
Van Brunt, P. J., concurs.
Dissenting Opinion
(dissenting.) It appears that the 16th June, 1886, and on July 19’th of the same year, the plaintiffs sold to the defendants certain pieces of merchandise at prices agreed upon, which were to be^lelivered as called for by the defendants, and to be paid for 60 days from October 1,1886, less 5 per cent. It also appeared that the entire purchase of June 16th was delivered and paid for, excepting 27 of one lot, and of the purchase of the 19th of July all were delivered, excepting 72 pieces, which the defendants declined to receive upon the ground that they were too late for their business. On the 18th of October the bills for the goods not delivered were inclosed in a letter from the plaintiffs, and were dated October 1,1886, payable at 60 days, but were returned by the defendants to the plaintiffs on the same day, accompanied by this statement in writing: “We return these bills with thanks, but cannot accept them, goods coming too late now.” On the 2d of December, the term of credit having expired, the plaintiffs wrote defendants that unless they paid the balance due they should, at a stated time and place, sell the goods at auction for their account. No payment having been made, the goods were advertised and sold at auction December 7, 1886, of which the defendants had due notice, and the amount realized on such sale was credited on their account. The defendants admitted upon the trial that the purchases of June,16th, anda part of the alleged purchases on July 19th, were made, claiming, however, that the purchases of the 16th of June were conditional, namely, that they were bound to pay only for those pieces for which they sent. The issues created by these conflicting statements of the transactions were submitted toi the jury, who found in favor of the plaintiffs for the difference between the prices of the pieces that were absolutely sold to the defendants and the amount realized at the auction sale thereof, witii interest. The amount claimed by
The only question of importance, therefore, presented for our consideration arises upon an exception to the charge made by the learned judge below. It appears from the evidence given on behalf of the plaintiffs, by their salesman, resulting from his redirect examination, that the market price for the goods which the defendants declined to accept, had fallen off in price in the month of October, and that it was difficult to effect sales at that tizne; and to a question asked by the court, namely, “What was the market price?” answered, “In the vicinity of a dollar for what we call the ‘ browns,’ and eighty-five cents for the ‘blacks.’” The defendants, on the question of value, introduced evidence to show that the market price of the goods in question began to decline about the 15th of November; that they were worth less in November than in October, and less in December than in November; that in October the market price depended upon the demand; and that in that month thez-e was always a demand for the goods, the season being in that month at its height; and'the witness, also, on that subject, stated that goods of that class were more salable in October than in June or July. Whatever conflict this may ei’eate on the subject of the market value in October, it appears from the evidence of the salesman of the plaintiffs that in October the goods had gone off in price, and although the defendants absolutely declined to accept the undelivered goods on the 18th of October, which wez-e then tendered to them, the plaintiffs made no sale of them, and, so far as it appears, made no attempt to sell them until the 7th day of December at public auction, and this at a time when it would appear there was little or no demand for them. Assuming these facts to be true, the delay of the plaintiffs in the exercise of their right to resell the merchandise was unjustifiable. Where that right is to be exercised it is incumbent upon the vendor to sell for the best price that can be obtained, at the earliest practicable period. Tilt v. Manufacturing Co., 5 Daly, 27; Pollen v. Le Roy, 30 N. Y. 549. And this rests upon the rule stated in Pollen v. Le Roy, 30 N. Y. 556, that “the difference between the agreed price of an article and its market value at the time of delivery is the actual damage sustained by a vendor upon the refusal by a vendee to accept the property sold, and the vendor may ascertain or liquidate this amount by a resale, taking all proper measures to secure as fair and favorable a sale as possible. ” Notwithstanding these facts and this leading principle, the learned justice in the court below, in charging the jury, said to them: “This question about the value of the goods in October has nothing, really, to do with this case, except so far as to furnish a znotive for the defendant in refusing to comply with this contract, if he made one. Because, when there is an absolute sale of goods, the law gives the vendor a right, upon tendering the goods if they are refused, to take them and sell them at auction, giving the parties notice of the time and place of sale, and upon such sale the vendee is liable for any deficiency, and that was the course adopted here. It was a perfectly legal and proper course for the plaintiffs to take if there was a contract, and the defendants become absolutely liable for the difference between the contract price and the amozznt realized on the sale,”—to which an exception was duly taken. It will be observed that the right to make the sale is unlimited in time by these observations, and that the valúe of of the goods in October was disregarded, although 12 days of that month still remained after the refusal to accept the goods, and within which time they