12 N.Y.S. 619 | N.Y. Sup. Ct. | 1891
Lead Opinion
This action is trover to recover of the defendant, who is the assignee for the benefit of creditors of a firm known as the “ Clark Manufacturing Company,” the value of certain property which came into his hands as such assignee. The plaintiff and the defendant’s assignors entered into an agreement January 29, 1880, by which a given quantity of personal property, consisting of machinery, patterns, and merchandise, was transferred from the former to the latter, to be paid for in installments, represented in amount by promissory notes ranging in times of payment between April 1, 1881, and April 1, 1889. When this action was begun (April 17, 1887) three of such notes, of $1,000 each, remained unpaid, but only one of them was due at that time. By the terms of the contract between the original parties it was agreed that “said machinery shall be the property of the said Brewer, in care, custody, and charge of said Mix Brothers, until paid for.” Upon the first trial objection was made by the defendant that no recovery could be had except upon a surrender of such outstanding notes. The justice presiding made a ruling to that effect, and afforded the plaintiff an opportunity to surrender the notes, which was declined by counsel, who had the notes in court, and who claimed the right to collect upon the notes any sum over and above the amount of the verdict which the jury might render in this action. A verdict for the defendant was accordingly directed. On appeal to this court, the judgment entered thereon, and an order denying a motion for a new trial, were reversed, and a0new trial granted. 7 N. Y. Supp. 244. The prevailing opinion placed the decision upon the ground that the action might' be main
There remain, therefore, to be considered by us only such subsidiary questions, if any, arising on the second trial as were not in the former case. It is contended by the appellant that, even though there may be a recovery for certain articles, there can be none for the patterns, for the reason, as is stated, that they are not “ machinery, ” and consequently the clause of the agreement retaining title in the vendor does not apply to them. By the terms of the contract, the plaintiff agreed to sell to the defendant’s assignors “a certain amount of machinery, and all patterns pertaining to the lock business. * * * Said machinery shall be the property of said Brewer * * * until paid for. * * * And the Clark Manufacturing Company agree to make the above-described purchase upon the conditions therein set forth and recited.” It is now argued that the word “machinery” does not include the patterns, which were valued at $3,400 of the original purchase. An attentive perusal, however, of the contract leads quite irresistibly to the conclusion that if the sale was conditioned in any part, and the title retained by the seller to
Dwight, P. J., concurs.
Dissenting Opinion
(dissenting.) In 1880, the Clark Manufacturing Company was doing business in making builders’ hardware in the city of Buffalo. On the 29th day of January of that year the following agreement was made between the plaintiff and the company:
“Office of Westfield Look-Works.
“Westfield, N. Y., January 29, 1880.
“Memorandum of agreement, made the day above written, between E. B. Brewer, of Westfield, N. Y., and the Clark Manufacturing Company, of Buffalo, N. Y. F. B. Brewer agrees to sell to the Clark Manufacturing Company a certain amount of machinery, and all patterns pertaining to lock business, now owned by him in the Jock factory at Westfield. A list of said machinery has been made, and the prices fixed, and the amount will be about seven thousand dollars, more or less; the transfer to be made on or about the first day of April, when any changes which Mix Brothers may deem necessary or expedient, in choice or character of the machinery, or the price of machinery or merchandise, shall be finally established. Said machinery shall be the property of said Brewer, in care and custody of said Mix Brothers, until paid for. The said Brewer agrees to accept in payment for said purchase, as conditioned above, five hundred dollars on the first day of April prox., five hundred dollars with interest on. whole amount unpaid on the first day of April, 1881, and $1,000.00 and interest on whole amount unpaid on the first day of April thereafter, until all is paid. Notes to be given for the several amounts. And the said Clark Manufacturing Company agree to make the above-described purchase upon the conditions therein set forth and recited. For the faithful performance of the above-written agreement, the parties bind themselves, each to the other, in the sum of five thousand dollars, as witness their hands and seals, day and date above written.
“Francis B. Brewer. [l. s.] “The Clark Manfg. Co. [l. s.]”
On the 21st day of October, 1887, the plaintiff made the following memorandum: “October 21,1887.
“I hereby certify the payments which have been made to me by the Clark Manufacturing Company, in pursuance of contract and notes given to me,
negotiable notes were executed and delivered in pursuance of the contract. All the notes were paid, including interest on the three last of a thousand dollars each, to April 1, 1887. On the 17th day of that month the firm made a general assignment for the benefit of creditors to the defendant. The plaintiff, on the 5th day of May of that year, made the following demand in writing:
“To James B. Ford, Bsq.—Dear Sir: You will please take notice that I, the undersigned, am the owner and entitled to the immediate possession of the machinery and personal property hereinafter described, now in your possession and under your control, and of the value set opposite each item, respectively, to-wit. ”
Then comes a statement of the property, consisting mostly of machinery, and also the following:
“Patterns, ------- $8,400 00”
The whole value of the items stated in the demand is $3,539. The demand closes with the following:
“And you will further take notice that I do hereby require and demand the possession or delivery of said machinery and personal property to me from you.
“Bated this 5 th day of May, 1887.
“Francis B. Brewer, Claimant.”
The defendant did not deliver the property, and on the 12th day of May, 1887, the plaintiff brought trover, alleging the conversion of the above articles of property, and demanding judgment for $5,000. Issue was joined. The cause was first tried at the Erie circuit in October, 1887, when the court directed a verdict for the defendant. On appeal a new trial was granted. 7 N. Y. Supp. 244. The cause was again tried in February, 1890, and resulted in a verdict of $3,515 for the plaintiff. A motion for a new trial was made and denied. Judgment was entered on the verdict, and the defendant appealed to this court from the judgment and order. It appeared, on the trial that the prices finally fixed amounted in the aggregate to $9,000, instead of $7,000, as first estimated; that $6,000 of principal, also interest on the whole amount secured, were the sums paid in all by the firm. The agreed price of the machinery and tools when purchased was $3,585, and the patterns, $3,400, and of the merchandise, $2,015. All the payments had been made before the making of the certificate, a copy of which appears above. The evidence also tended to show that the three unpaid notes, before they fell due, were sold by the plaintiff to the Westfield Bank, indorsed by him; that he afterwards paid them, and had them in his possession at the last trial, when they were all due. There was considerable evidence given on the subject of the value of the property on the trial. Some of the plaintiff’s evidence tended to show that the property alleged to be converted was equal, if not greater, in value than the verdict; while the evidence on the part of the defendant tended to show that the property was very much less in value, and there was some evidence on the part of the plaintiff to the same effect.
The trial justice charged the jury, in substance, that if they found for the plaintiff' their verdict would be the value of the property, with interest from the time of the conversion, but that it could not be more than the amount unpaid on the notes, including interest. The verdict was for the exact amount unpaid upon the notes. The evidence on both sides tended to show that the property referred to in the agreement was delivered to the defendant’s .assignors; that the patterns were frequently changed or replaced; and that the other property, except the machinery, had been to a considerable extent disposed of. All the evidence showed that the value of the machinery, outside the patterns, was very much less than the verdict.
The theory of a conversion and the continuance of the contract, so that the unpaid purchase money could be collected, is entirely inconsistent. The plaintiff had his election to pursue any of his remedies, but, having elected one remedy, all others are irrevocably gone. Fowler v. Bank, 113 N. Y. 450, 21 N. E. Rep. 172; Bodermund v. Clark, 46 N. Y. 354; Steinbach v. Insurance Co., 77 N. Y. 498; Andrews v. Insurance Co., 92 N. Y. 596; Bank v. Burt, 93 N. Y. 233; Bowen v. Mandeville, 95 N. Y. 237; Moller v. Tuska, 87 N. Y. 166; Sweetser v. Smith, 5 N. Y. Supp. 378. In the case last cited, Powers v. Benedict, 88 N. Y. 610, is shown to decide no different doctrine; it being there merely held that a replevin suit, where all the property was not taken, would not prevent a pursuit of other property.
The learned counsel for the respondent in his brief correctly states his position in saying: “This action is brought upon the conditional sale, and is by virtue of the contract itself, and in pursuance of its terms, and therefore an enforcement of said contract, and not a rescission thereof.” The parts italicised are so in the brief. The trial justice adopted this view, and all his rulings were based on the assumption that the plaintiff could maintain trover, and also recover, in an action on contract, -the balance unpaid upon the notes. The amount paid by the defendant’s assignors on the conditional contract was in pursuance of its provisions, and no reason is seen why the defendant should be entitled to recover back the sums paid. But a different question arises as to the unperformed part óf the contract. When the action was brought there were outstanding negotiable notes not then due. The plaintiff elected to treat the conditional sale as ended, and the continued possession of the property in the assignors or their assignees as wrongful, which entitled the defendant to the return of the unpaid notes. The moment he took this position, it logically and necessarily followed that, from the time of this election, he treated the executory contract as at an end. He could not, on the one hand, enforce payment under the provisions of the contract, and on the other repudiate it, and recover the property or its value in an action of tort. On the former appeal the learned justice, delivering the prevailing opinion, states, among other things: “The plaintiff has a right to take possession of the property as against the vendee, for the purpose of preserving his security and enforcing his right to have the property devoted to the payment of his debt.” It is obvious that the learned justice fell into the error of assuming that title had vested in the defendant’s assignors, and that the plaintiff held the property simply as security. The distinction between a conditional sale and chattel mortgage does not seem to have been noticed. In the present case, the defendant’s assignors obtained no title, but were merely bailees for the plaintiff. Comer v. Cunningham, 77 N. Y. 391-398; Austin v. Bye, 46 N. Y. 500; Herring v. Hoppock, 15 N. Y. 409; Ballard v. Burgett,
The trial in this case proceeded on the assumption that this action was entirely consistent with a recovery upon the notes for any deficiency. The learned counsel for the respondent argues that, inasmuch as the court charged that there could be no recovery beyond the amount unpaid on the notes with interest, and as the verdict was exactly that sum, even if the trial proceeded on a wrong theory, the defendant was not injured. The difficulty with this reasoning is that it assumed the plaintiff’s right to recover the value of the property in trover, and also the balance unpaid upon the notes on contract; also that it is impossible to know to what extent the wrong theory adopted on the trial affected the amount of the verdict. The jury had a right and assumed that in .one sense they were finding a verdict fo.r the amount due the plaintiff.. It is true that the value of the property would determine the amount of the verdict, but it is clear that the theory of the trial induced the jury to take into consideration the amount due upon the notes in estimating this value. There was no.evidence showing that the value of the property was the .precise amount due. upon the notes. If the jury had been instructed that the plaintiff’s election to bring trover would prevent an action on the notes, other considerations might have influenced them in determining the question of value. “Machinery” is defined by Webster as “the working parts of a machine, engine, or instrument, arranged and constructed so as to apply and regulate force; as the machinery of a watch. The means and appliances by which anything is kept in action.” Worcester’s definition is, “An artificial work which serves to apply or regulate moving power, or-to produce motion; an engine; a piece of mechanism.” The contract is, “said machinery shall be the property of said Brewer.” More than seven years later the plaintiff construed this clause by stating that the amounts paid had been applied—First, on merchandise; second, on patterns; and, third, all surplus t.o apply in balance of their indebtedness. Ho indebtedness appears except for merchandise, patterns, and machinery. The pay ments made were therefore, naturally, .applied, in the extinguishment of those portions of the debt arising from the sale of property, the title to which passed; but .as to the machinery, the title to which was retained in the plaintiff, no applications were made until the rest of the indebtedness was paid. A pattern is a mere model which may be used to construct machinery and-create working implements, and such are the above definitions. But it cannot be said with any force or plausibility that a model or pattern is a “machine,” within any known definition of that term. The contract itself makes a distinction between patterns and machinery. Where property is delivered under a contract of sale, no construction should be adopted retaining title in the vendor without clear and unambiguous language. It is generally true that delivery in pursuance of a contract of sale is presumed to vest title in the vendee, and, if for any reason it is retained in the vendor, this is so by virtue of the terms of the contract. In addition to this, the demand itself speaks of machinery and other personal property, and in the bill of items the machinery is given in detail, while the patterns are lumped up by the use of that word, and valued at $3,400. Besides, models or patterns are frequently changed or modified, as was the case in this manufacturing estab
