152 N.Y.S. 394 | N.Y. App. Div. | 1915
Lead Opinion
This action was brought to recover the amount paid on the purchase price of a vacuum rotary drum dryer under a contract with the defendant for the sale thereof by which the title was to remain in the defendant -until payment of the full purchase price; and the right of recovery is predicated on tíie retaking of the property by the vendor and its failure to sell the same within the time prescribed by section 65 of the Personal Property Law (Consol. Laws, chap. 41; Laws of 1909, chap. 45). The defendant manufactured vacuum rotary drum dryers used in drying milk into powder or milk flour for commercial purposes, and its plant was at Buffalo, N. Y. The contract for'the sale of . the dryer was in writing and consists of a proposal made by the appellant under date of November 16, 1909, to Richard Heim of Canastota, N. Y., and of an acceptance by him thereof on the twenty-second day of the same month. The dryer was to be and was manufactured according to specifications annexed, to the contract, and was a very bulky and heavy machine, requiring three freight cars for its transportation. It was sold for $12,000, f. o. b. cars at Buffalo, but was to be and was installed by the vendor at Heim’s creamery at Truxton, N. Y., the vendee also paying for the services of the erecting engineer. The terms of sale were $1,500 at the time of the execution of the contract, $1,500 within two months thereafter, $2,000 when the machine was ready for shipment, and the balance to be evidenced by notes given prior to the shipment of the machine of $750 each, bearing interest at six per cent, maturing in-sixty, ninety, one hundred and twenty and one hundred and fifty days, and eight notes for $500 each, maturing six, seven, eight, nine, ten, eleven, twelve and thirteen months from date. The vendee made the first payment and on the 3d day of December, 1909, assigned the contract to the Heim Milk Products Company, a domestic corporation evidently incorporated to take over his business, which assumed all his liability thereunder. The Heim Milk Products Company was adjudicated a bankrupt on the 29th of February, 1911. Prior to that time there had been paid on the contract price of the dryer $6,496.25, and nothing was paid thereafter. A trustee in bankruptcy was
On the day the trustee was appointed his attorney and the attorney for' the appellant had a conversation with respect to these two machines and the contracts under which they were sold, and the balance unpaid thereon. According to the testimony of the attorney for the trustee, the attorney for the appellant stated that no payment had been made for several months on account of the machine at Truxton, and that the appellant was desirous of taking possession and realizing on it; and he stated that he hoped to sell both plants, and that he thought they could be sold to better advantage together, and requested a reasonable time to enable him to endeavor to do so, and asked whether the appellant would insist upon its lien against the machine at Canastota; and the attorney for the appellant thereupon stated that his client would release the lien on the Canastota machine and give him a reasonable time in which to endeavor to find a purchaser for the Truxton machine “if the trustee was willing, at the expiration of such time, when we were satisfied that we could not find a purchaser so that we could realize anything upon the equity, to release the machine to him without further trouble or expense; ” and that he talked the matter over with the trustee, who thought it was “the proper arrangement to make,” and that he informed the attorney for the appellant “that that would be satisfactory.” Appellant evidently relying on that agreement refrained from exercising its legal right to retake the machine at once and gave the trustee all the time required to endeavor to sell the machine. It appears that thereafter and on the 11th day of April, 1911, on the petition of the trustee, the attorney for the appellant appearing and interposing no objection, the referee in bankruptcy made an order authorizing the sale of the Truxton plant and of this machine separately. The attorney for the trustee further testified that after the arrangement with the attorney for the appellant,
At the close of the evidence the attorney for the appellant moved for a direction of a verdict, reserving his right to go to the jury if the motion should be denied, on the ground that the plaintiffs had waived their rights or were estopped from asserting the claim on which this action was brought. The motion was denied, and his requests to go to the jury were denied and he excepted; and on motion of counsel for the plaintiffs the court directed a verdict for $6,496.25, the amount paid on the machine.
We do not agree with the learned counsel for the appellant that article 4 of the Personal Property Law (Consol. Laws, chap. 41; Laws of 1909, chap. 45), relating to contracts for the conditional sale of goods and chattels, does not apply to property sold under a conditional contract of sale where at the time the contract is made the property is not in esse, but is to be manufactured. That was the construction placed
Clarke and Dowling, JJ., concurred.
Concurrence Opinion
I concur in the reversal of the judgment upon the grounds, first, that it was error not to have submitted to the jury the question whether or not plaintiffs had not waived any rights they may have had to the property, or had estopped themselves from asserting any rights in reference thereto, and, second, that assuming that the contract between the original vendee and defendant was assignable, and might have passed under the sale by the trustee in bankruptcy, it was not assigned thereby because the plaintiffs never accepted it or assumed the vendee’s obligation under it.
Hotchkiss, J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.