3 N.Y.S. 730 | N.Y. Sup. Ct. | 1889
The action was brought to recover the price of an engine,, boiler, and pump, with appendages, alleged to have been sold and delivered by the plaintiff to the defendant, and to have been purchased by her. The latter denied the sale and purchase. It appears that, the defendant was the;
The alleged agreement of sale was evidenced by no writing, and no payment was made of any part of the purchase price. It is therefore contended on the part of the defendant that the agreement was within the statute of' frauds, and void. 2 Itev. St. p. 136, § 3. There was no act of delivery and acceptance at the time the alleged contract was made, but the property was then, at the quarry, under an arrangement with the husband by which the plaintiff had rented it for use there; and, assuming that the husband was such agent, and rented it for the defendant, the property was then in her possession as lessee. Upon the subject of delivery and acceptance, the trial court charged the jury that the husband then had the possession of the engine, either in his-own right, or as agent of his wife; and that, if it was then understood and agreed between the parties that there was or should be a sale, “that sale was a valid sale, and the only question remaining for you to determine is whom the sale was made to;” and that, “if he had the entire possession, of course-he could not get any more possession, and there was no necessity of any writing, no necessity of any payment, or necessity of any further delivery.” The-view of the court evidently was that no act further than the making of the oral agreement of sale and purchase was essential to its validity, and to render-the contract effectual, if the property was then in the possession of the party in whose behalf it was made as purchaser. The defendant’s counsel took exception to the proposition so charged. The statute requires to support such a contract a subscribed memorandum of it in writing, unless the buyer shall accept the property, or some part of it, or at the time pay some part of the-purchase money; and its purpose was not to permit the validity of such an agreement to rest merely in words. The design of the statute was in contracts of this character, having the importance represented by the requisite-price of the property, to guard against misunderstanding of the parties and. perjury, by requiring, in the absence of any writing subscribed by the party to be charged, that a portion of the purchase money should at the time be paid, or that then or thereafter the purchaser should by some act accept and receive-some of the property. The opportunity and expressed purpose to accept is not sufficient. Shindler v. Houston, 1 N. Y. 261.
Assuming that the machine was in the possession of the defendant at the time the agreement to purchase was made, and that the husband, as her agent, made it, those facts alone were not sufficient to give validity to the contract. To hold otherwise would have the effect to render the mere words of the parties to such a contract effectual, and the purpose of the statute would be defeated. Tlie then possession was in no manner produced by or derived from.
The suggestion of the plaintiff’s counsel that the question raised by the exception before mentioned was obviated by other portions of the charge of the ■court does not seem to be supported. The part of the charge in question is not qualified, necessarily or in fact, by any instruction given to the jury. So ffar as appears, they were permitted to understand that the fact of possession by the defendant of the property at the time of making the contract by her •agent (if so made) was sufficient to render the contract of sale valid. While it is true that, in view of such possession, nothing further was required of the plaintiff, by way of delivery of the property, the matter of acceptance requisite to the validity of the contract was dependent wholly upon the voluntary ■act of the other party to such contract. It is deemed unnecessary, for the purposes of another trial, to express consideration of any other question presented on this review. The j udgment and order should be reversed, and a new trial granted, costs to abide the event. All concur.