5 N.Y.S. 713 | N.Y. Sup. Ct. | 1889
The fact was proved upon the trial that Gustavus Maas, on the 24th of December, 1886, by a memorandum which he executed, sold to White, Morris & Co. $20,000 Troy & Boston seconds, at 75 cents. On the same day, and by a similar instrument, he sold to the same parties $30,000' of the same securities. The memorandum subscribed by him was the same in each instance, with the exception of the amount. That for the $30,000 is in the following words and figures: “Sold White, Morris & Co. $30,000 Troy & Boston 2nd, 75 reg. G. Maas. Bee. 24, 1886.” By these memoranda, as they were explained by the evidence, Maas agreed to sell and deliver to-White, Morris & Co., who were defendants in the action, these bonds, for the designated price of 75 per cent., and that was sufficient to comply with the requirements of the statute, requiring the agreement, or a memorandum of it, to be in writing, and subscribed by the party to be charged. The evidence ■ proving the contracts of sale, and the execution of these memoranda, was objected to by the plaintiff; but the objection was overruled, and the proof received by the court, to which the plaintiff excepted. And it is quite clear that neither of these exceptions was well taken, for the evidence which was given had a direct tendency to establish the fact of a legal contract for the • sale of the bonds, and to explain the abbreviations contained in the memoranda. It was not proved by mere declarations or conversations, occurring between other parties in the absence of the plaintiff’s assignors, but it was evidence given to prove the nature and character of the transaction itself, which took place between the parties, and the manner in which it was brought about and completed.
The bonds were not delivered to the purchasers in performance of the terms-of these memoranda, and on the 29th of December, 1886, one of the members • of the firm of A. S. Hatch & Co., who are the plaintiff’s assignors, at the instance or upon the information of Mr. Tobey, who was a member of the firm of Tobey & Kirk, applied to the purchasers of the bonds named in these memoranda for further time for their delivery. According to his own and further evidence in the case, his firm had contracted to sell these identical bonds, but not by any instrument in writing, or for any part payment made upon the purchase price. But the persons to whom the firm of Hatch & Co. had in this manner agreed to sell the bonds had either directly or indirectly empowered Maas to enter into the contracts of sales he made with the firm of. White, Morris & Co., and the firm of Hatch & Co. had received the informa-• tian that, when the bonds were to be delivered, this firm of White, Morris &, Co. was the party who should receive them. The understanding of the member of their firm with whom the witness Hatch is stated to have held his conversation, the proof of which was clearly admissible, was that the firm of' White, Morris & Co. had purchased the bonds of the firm of Hatch & Co.,, which of course could only have been done by the fact existing that Maas, who made the memoranda for the sales of the bonds, was authorized and empowered to act for the firm of Hatch & Co. in agreeing as he did for their sale. Whether such a relation in fact existed between himself and Hatch &. Co. was not proven in the case, otherwise than it might be inferred from the-conversation stated to have taken place. In this conversation between the witness Hatch and Mr. Blackwell, of the firm of White, Morris & Co., Mr. Hatch stated that Blackwell said: “The firm had bought the bonds of us.
The firm "of White, Morris & Co. had complied with this rule or article by making the deposit on their part of the sum of $5,000 with the Farmers’ Loan & Trust Company, pursuant to this rule or section. To obtain the ex-tension which Mr. Hatch applied for from the firm of White, Morris & Co., the firm of Hatch & Co. were required to make a like deposit of 10 per cent, on the price with the Farmers’ Loan & Trust Company. They did make that-deposit on the day when this extension was agreed to be given, and received from the Farmers’ Loan & Trust Company its certificate in the following language: “This is to certify that White, Morris & Co. have deposited with this company five thousand dollars, payable in current funds, on one day’s notice to them and A. S. Hatch & Co., jointly, upon the surrender of this certificate, (which is assignable upon the books of the company,) with interest at the rate of two per cent, per annum, provided the deposit -is not disturbed until after the expiration of three days. $5,000. [Sgd] Wm. H. Letjpp, Secretary. [Sgd] T. F. Barnett, Cashier.”
The firm of Hatch & Co. failed to deliver these bonds, became insolvent, and made a general assignment to the plaintiff in this action, and he brought the suit to recover this sum of $5,000, in this manner placed on deposit with the Farmers’ Loan & Trust Company. The right to maintain the action has been placed upon the ground that the contract of Hatch & Co., not being in writing, and no part of the purchase price having been paid, was void, and for that reason he as assignee was entitled to the return of this sum of money. And while the position might be well taken that the contract of Hatch & Co. to deliver the bonds was not binding upon them under the statute of frauds, still the money was deposited with the Farmers’ Loan & Trust Company under an agreement made between these two different firms for a consideration of which the firm of Hatch & Co. had the benefit. They assumed to be obligated to deliver these bonds to the persons who had purchased them from Gustavus Maas, and promised that they, in his place, would perform the contracts of sale, of which memoranda had been made in writing. But, because of the delay or inability of the party from whom the bonds were to be received
It is not sufficient to maintain the plaintiff’s action that his assignors did not become bound by their promise to deliver the bonds, or for the performance of the agreement made by Maas. The cases accordingly of Ackley v. Parmenter, 98 N. Y. 425, and White v. Rintoul, 108 N. Y. 222, 15 N. E. Rep. 318, are not decisive of oreontrolling over this action; form those cases no more than the fact of the promise, or agreement itself which liad taken place between the parties, was before the court for examination or decision. FTeitber is the case of Dung v. Parker, 52 N. Y. 494, applicable to the action. For that has proceeded no further than to hold that an agreement within the statute of frauds, not in writing, and upon which no part of the purchase price has been paid, and entirely unperformed, is void between the parties. Ffeitlqer do the case of Noakes v. Morey, 30 Ind. 103, or Howe v. Hayward, 108 Mass. 54, decide anything controlling over this controversy; for in neither has it been held, nor was anything said from which that could be inferred to be the opinion of the court, that a deposit made in this manner could be recovered afterwards by the party making it, when that party alone had wholly failed to comply with the terms on which the deposit was made. In the case of Howe v. Hayward, stipra, which has considered the subject more directly than either of the others, a verbal agreement had been made for the sale of the stock of a livery stable for the price of $2,500, and a deposit of $200 had been made to secure the performance of the agreement. The action there was not brought to recover the deposit, but it was for damages for a failure to perform the agreement; and what the court held was that the simple deposit of the sum of $200 was not a payment on the'contract of sale, and did not take it out of the statute of frauds, and for that reason the contract, not being in writing, afforded no foundation for an action for ■damages. This case is entirely different from that or any other action which has been found to have been favorably disposed of by the courts. It is not ■dependent upon the verbal promise made by Hatch & Co. to deliver the bonds, ■but upon an additional agreement made for the benefit of that firm, and by
The same result also follows from the principle that the party who has in part performed a contract void under the statute, which the other party is ready and willing to perform, cannot, on the sole ground of his or their own default, recover for what has been paid or done in the way of part performance. The principle applicable to the case seems to be that the party able, willing, and ready'to perform cannot be compelled to refund to the party who. bases his action entirely on his own inability or refusal further to perform on his part. If the party receiving the part performance refuses to perform the residue of the agreement, then the law will infer a promise on his part to return what he may have received. But neither that promise, nor any equivalent obligation, will be inferred .in favor of the party whose demand rests wholly on his own default in the way of completing what has in fact been partly done by him. The soundness of this rule was recognized in Baldwin v. Palmer, 10 N. Y. 232; and it was followed in King v. Brown, 2 Hill, 485,