11 Daly 529 | New York Court of Common Pleas | 1885
The court had jurisdiction to allow the words “ & Son ” to be stricken from the title, and to direct that the name of Abraham Quackenbush be inserted instead.
The action was brought against the defendants as copartners; and where that is the case the Code provides, § 1932, that if the summons is served upon one or more, but not upon all the defendants, the plaintiff may proceed against the defendant or defendants served, unless the court shall otherwise direct; and if he recovers, may take final judgment against all the defendants jointly indebted; upon which judgment, the execution issues in form against all the defendants—§§ 1934,1935—but is not enforced against a defendant who has not been served with the summons, except that it can be collected out of property jointly owned by him with a defendant who has been served.
The answer in this action is by J. E. Quackenbush, one of the partners, from which it may be assumed that he was the only one served in the action; and the amendment appears to have been made for the purpose of having the name of both partners inserted in the summons and complaint, instead of J. E. Quackenbush & Son, as it was in the summons and complaint; which amendment may be made under § 451; and which, in fact, the court under the Code must, when the true name becomes known, order to be made, upon such notice and such terms as it may prescribe.
The cases to which the counsel for the appellants refer,
Before passing upon the exception taken to the judge’s charge, it will be necessary to consider the case presented by the evidence.
It appeared that the firm of J. E. Quaekenbush & Son, who are hardware merchants, had an order from Italy for 300 shears, an article manufactured by the Renz Hardware Company, a manufacturing company at Bridgeport, Connecticut, having an office for the transaction of business in this city. The defendants sent a letter to the company’s office, asking at what price they would supply the quantity of shears wanted, payment to be made in ten days. The treasurer of the company, A. Kaufman, replied by a letter giving what he called the company’s “ bottom prices ”; and stating that they did not object to the payment in ten days. This was followed by further correspondence, until finally J. E. Quaekenbush & Son sent a letter stating that the company might furnish the shears required at the company’s prices; and the company, on January 26th, 1883, delivered the shears at the store of J. E. Quaekenbush & Son, with a bill made out in the name of the Renz Hardware Company, in which it is stated that the articles, which are enumerated in the bill, were sold to J. E. Quaekenbush & Son, “terms cash, within ten days from date.” This is the transaction as it appears by the documentary evidence, that is, the letters between vendor and vendee, and the bill delivered with the goods; and it agrees with the other evidence given by the defendants. But the account of the transaction given by the plaintiff’s wit
On the morning after the delivery of the goods, the attorney of the defendants went to the office of the company, and seeing the treasurer, told him that he came to pay the defendants’ bill, and offered in pa)ment of it the $467.50.
■ These 300 shears formed part of 1000 shears which the plaintiff, about ten months before, had bought of the Renz Hardware Company, who were the manufacturers of them. There was no question in the case as to the integrity of the purchase. The 1000 shears were delivered to the plaintiff at his place of business in Brooklyn, who gave his checks for them, which checks, it was shown, had been paid. When the Renz Hardware Company received the order for the goods, they inquired of the plaintiff if he had them on hand, advising him of the order they had received, and he replied that he would fill the order and pay the company a commission upon the sale, but that he did not want to give any time. And it further appeared that the goods were taken from the Renz Hardware Company’s office in this city, when they were delivered to the defendants.
Upon this state of facts, the judge charged the jury that, if they found that the plaintiff owned the property, but the defendants had no notice whatever of the fact, but acted in good faith, without knowledge or notice of the, plaintiff’s title, or of any circumstance calculated to put them upon
It is a well settled rule, that where a factor sells goods as his own, and the buyer, having no knowledge 4hat he is acting as a factor, has a right to assume that he is the owner, such a buyer, in an action brought by the principal for the price, may set off any demand which he has against the factor. In the earliest reported case in which this rule is found, Rabone v. Williams (7 T. R. 360, note a), it is thus broadly stated by Lord Mansfield : “ Where a factor acting for a principal, but concealing the principal, delivers goods in his own name, the person contracting with him has a right to consider him, to all intents and purposes, as the principal, and though the real principal may appear and bring an action upon that contract against the purchaser of the goods, yet the purchaser may set off any claim he may have against the factor in answer to the demand of the principal.”
Paley says that this rule “ is built upon the principle that, where the buyer has been led to contract under the impression that his contract is with one person, he cannot aftenvards be defrauded of the right which he has against
Story declares that the ground of this doctrine “ undoubtedly is that where any person holds himself out as a principal, with the consent of the owner, third persons who deal with him bond fide, are entitled to all the rights which they would have if he were the real principal ” (Story on Agency, 2d Am. ed. § 390). And Justice Chambers, in Houghton v. Mathews (3 Bos. & P. 490), and Chief Justice Nelson in Mitchel v. Bristol (10 Wend. 495), approve of the reason which is given for the rule in Cullen’s Bankrupt Laws, that the parties, by their conduct, having enabled their agent to gain credit, as the sole owner, and the buyer having contracted with him bond fide in that character, they cannot recover against the buyer without allowing him the same advantages and equities in his defense that he would have had against the agent.
As indicated in the statement of the rule, it does not apply where the buyer knows that the seller is not the owner; or where the circumstances are such as should have put him upon inquiry, especially when the facts might easily have been ascertained, and he must be regarded as negligent in not making the inquiry (Baring v. Corrie, 2 Barn. & Aid. 137 ; Eastcott v. Milward, 7 T. R. 361, note B. ; Young v. White, 7 Beav. 506 ; Mitchel v. Bristol, 10 Wend. 495-6 ; Hogan v. Shorb, 24 Id. 458) ; Bliss v. Bliss, 7 Bosw. 339 ; Judson v. Stilwell, 24 How. 513). And in applying the rule, a distinction is recognized between a factor and a broker; because factors have the possession of goods upon which they usually make advances, and having a special property in them, have authority to sell them in their own name; whereas, the broker has not the possession of the goods, the purchaser is not deceived by that circumstance, and as the employment of a broker gives him no authority to sell the goods as his own, he cannot bind his principal if he does so ” (Baring v. Corrie, 2 Barn. & Ald. 144).
The first question which this case presents is, what was
In Hogan v. Shorb (24 Wend. 458), the action was brought to recover for goods sold. It appeared in this case, that one Morris, who was an agent of the plaintiff, sold the goods to the defendant, without disclosing the name of his principal. The sale was for cash or for payment in from 2 to 6 days, which was deemed a cash sale. Morris, the agent, had stopped payment 20 days before the sale; a fact that
The court, after a very full review of the decisions under this rule, before stated, from the earliest report of it, in Rabone v. Williams (supra), held that, under the circumstances stated, the offset must be allowed, and the judgment in favor of the plaintiff was reversed.
Bbonsos', J., who delivered the opinion of the court, said that it might be an open question whether the vendor, immediately after the delivery, and when he first discovers that the vendee does not intend to abide by his agreement to pay cash, may not disaffirm the sale, and bring trover for the goods, if they still remain in the hands of the vendee; but that, whatever may be the fraud, if the goods are actually delivered in pursuance of a contract of sale, the vendor may elect to affirm it; and that he does affirm it, if there be any considerable delay in requiring a return of the goods, after discovery of the fraud; or where, as was done in that case, he brings an action for the price.
The judge held further that the fact that Morris was a commission merchant had. little or no tendency to prove notice, because he was also a trader on his own account; that the fact that he had stopped payment proved nothing,
It appears to me that these two decisions cover all the questions that arise upon the facts in this case. The transaction upon the part of the defendants is not, it is true, one that commends itself to the favorable consideration of the court. The offset was not one arising out of any transaction between the defendants and the Renz Hardware Company, but the defendants, after they had obtained an order for a certain quantity of an article which that company manufactured, and from whom they meant to purchase it, went and bought the depreciated paper of the company, at the enormous discount of 79 per cent., that they might make $367 out of an order for goods for which they were to pay but $522; and when ascertaining, according to plaintiff’s witness, that the company would not, at the price agreed upon, give any time, but wanted, as the witness expressed it, “ spot cash payment upon delivery,” the defendants, to secure a delivery, practiced the artifice of representing that they did not want to pay cash until their customer had paid them, coupled with the promise that when the bill of lading, as I understand the testimony, was signed, they would give the company their check for the amount of the bill. But,
It was distinctly held, as has been stated, in Hogan v. Shorb (supra), that although the buyer, "when he agreed to pay cash, intended to pay for the goods with the note that he held, of the factor, that would not affect his right to set it off in the action brought by the principal for the price of the goods, the note being then due; and that this is the law, appears also by the cases of Eland v. Karr (1 East 375) ; Comforth v. Rivett (2 Maule & Sel. 510) ; Lehmere v. Hawkins (2 Esp. N. P. 626) ; Downer v. Eggleston (15 Wend. 51) ; for a set-off is a legal right, and may be insisted upon, even where an express promise has been made to relinquish it (Downer v. Eggleston, supra ; Taylor v. Okey, 13 Ves. 180).
One of the early cases in which a set-off of the vendor’s paper in an action brought for the price of the goods was not allowed, Fair v. McIver (16 East 130), resembled the present case, in the feature that the paper of the vendor was obtained for the purpose of using it in payment for the goods'bought; but the case is distinguishable from the present one, in the circumstance that the purchaser there was not the bond fide owner of the bill of exchange which was offered to the acceptor.in payment for the goods bought, but was acting for the benefit of the real owners, one of whom, knowing that the vendor had not been regular in his payments, informed the defendant who made the purchase, that he was in doubt as to the acceptor’s affairs; and upon his solicitation and suggestion the defendants undertook to secure the payment of the bill, by purchasing goods of the acceptor, and after the delivery of them, offering the bill in payment, which he refused to take. The acceptor shortly afterwards failed; and in an action brought by his assignees against the defendants to recover for the price of the goods, it was held that the defendants could not set off the bill
Lord Ellenbobottgh went beyond this, declaring that he was not satisfied with the previous decision of Lord Kenyon in Eland v. Karr (1 East 375) ; that upon the sale of goods for ready money the condition is performed by offering in payment the vendor’s own paper; but in subsequent cases, his view was not concurred in, but that of Lord Kenyon was held to be the law; see the cases in Hilliard Sales 3d Ed. 239. Where the agreement is to pay cash, there is no reason why the vendor should refuse to receive his own paper, if it is due, as equivalent to cash; and it has been so held (Mayer v. Nias, 8 Moore 275 ; 1 Bing. 311). There is not, in such a case, that fraud which exists where a contract is made for the purchase of goods for cash, and possession of them is obtained with a preconceived intention not to pay for them. ' What appears in the present case is that, upon a sale of goods for cash, a delivery of them was obtained with a preconceived intention to pay for them in the depreciated paper of the vendor which had been bought for that purpose; and that does not amount to a conversion (Mayer v. Nias, 8 Moore 275 ; 1 Bing. 311 ; Kennett v. Robinson, 2 J. J. Marsh. [Ky.] 84 ; Hilliard Sales 3d Lond. Ed. 309, 405 ; Wells Replevin 349, 551) ; for the goods being delivered upon a promise to pay the cash upon the Saturday following, the possession, in the first instance, was lawful, and if the plaintiff, being the owner of the goods, as he had authorized the sale of them only for cash, was entitled to a restoration of them on the breach of that condition, then a demand of them of the defendants and a refusal on-their part to give them up, were necessary before an action could be maintained for a conversion, or more properly, for the wrongful detention of the goods (Hall v. Robinson, 2 N. Y. 295 ; Addison on Torts 3d. Ed. 312). But there has-been no demand for the restoration of the goods, but a de
The complaint appears to have been framed with a view of recovering as in an action for a tort. It first avers a sale and delivery of the goods for cash, payable the day after the delivery; a demand of payment, and a refusal. It then avers that the plaintiff was induced to deliver the goods, by deceit, trick and device practiced upon him by the defendants. It sets forth the representations of the defendants, upon which he was induced to deliver the property, which, it avers, were false and made with the fraudulent intent to obtain the goods without paying for them, and demands judgment for $535 which is the price of the goods with interest.
The evidence did not sustain this complaint; for it was not shown that the representations were made with a fraudulent intent to obtain the'goods without paying for themj but with an intent to pay for them chiefly in the protested paper of the vendor and supposed owner, which, as I have said, is not a conversion. The complaint shows that the possession which the defendants obtained was lawful, as it avers delivery under an agreement to pay the cash for them upon the following day. It avers a breach of that payment by a refusal to pay cash, and the setting up of a pretended claim as an offset against the plaintiffs bill; but there is no averment that the plaintiff had rescinded the contract or demanded a return of the property, and that the defendants had refused to restore it, which was essential to sustain an action for a wrongful detention, the taking having been lawful: The only action that was maintainable, therefore,
under the complaint, was an action for the sale and delivery of the goods, and as that affirms the contract of sale, the right of set-off exists, unless the defendants knew, when they made the contract, that the Renz Hardware Company were not the owners but were' acting as factors or the ciroumstan
There is nothing in the case to show that the defendants had any intimation that the shears belonged to the plaintiff, or that there was anything that should have put them upon inquiry; and as they had in their possession, at the time of the sale and delivery, an indorsed note of the company which was past due, they had the right, regarding the company as principals in the transaction, to tender it in part payment, or to set it off in an action brought for the price. There would be no doubt of this, if the Renz Hardware Company were the owners of the goods; and it is the same where the company acted as owners, and the buyers knew them only as such up to the time when their note was offered to them in part payment for the goods. It may be that the plaintiff had the right to rescind the sale under the circumstances—a point upon which I express no opinion—and bring an action for a conversion or wrongful, detention, on the defendants refusing to give up the property upon demand, when they were advised of the plaintiff’s ownership. But he has made no such demand and can maintain no such action. • The action which he has brought is maintainable
Upon this review of the facts and the law, it appears that the charge of the judge was erroneous in instructing the jury that, if the defendants had knowledge or notice, on the day they received the goods or on the day following, that the property was the plaintiff’s, and that they then had it in their power to return it, that they were liable for the contract price; or, in other words, that they could not set off the note in the action for the price of the goods.
There must, therefore, if my colleagues concur, be'a new trial.
Larremore and Yak Hoeser, JJ., concurred.
Judgment reversed and new trial ordered, with costs to abide event.