50 N.Y.S. 691 | N.Y. App. Div. | 1898
Plaintiff is a foreign corporation, wholly engaged in carrying on a manufacturing business in this state. In the month of February, 1896, a negotiation was had between the plaintiff and Pratt, of Boston, for the purchase of a quantity of composition metal, and a purchase was consummated by telephone and letter, and the metal was shipped from Boston to the plaintiff, and reached the city of Auburn about March 2, 1896, the invoice having been transmitted on the 26th of February, for 25,338 pounds, at the agreed price of $1,900.35. Immediately after the arrival of the composition the plaintiff discovered that it was “spongy and looked very black.” The plaintiff executed and delivered its promissory note to Pratt for $1,900 on the 29th of February, bearing date the 2d day of March. On the 10th of March the plaintiff commenced to use the metal, and continued its use every day until March 22d. The plaintiff discovered that the metal would not make good eastings, and was of an inferior quality, and wrote Pratt to that effect on the 13th of March; and again wrote to him on the 17th of March, stating that they had made a test of the metal, and found it poor quality, and proposed to send the metal back to him. However, the plaintiff still continued to use it until the 22d of March as its own property. The plaintiff made use of 14,569 pounds, using up all but 10,769 pounds. The plaintiff alleges that it continued to use the metal after discovering that it was poor, “because they had no other metal, and did not want to .close their foundry, and stop,” and thereby sustain a heavy loss. On the 17th of March, 1896, Pratt made an assignment; and on the 21st of March, Mills, one of the officers of the plaintiff, was in Boston, and learned of Pratt’s failure, and then commenced an action against Pratt and his assignee to restrain the transfer of the note given for
“The use of the machines for the purpose of their business, after the trial had shown that they were defective, was a conclusive election to accept. In this respect the present case resembles closely that of Brown v. Foster, supra; and the decision in that case, that the plaintiff, by using a sawmill after knowledge that it failed to comply with the contract, had accepted it, and was precluded from subsequently returning it, controls the disposition of this case.”
In Benj. Sales, § 703, it is said:
“When goods are sent to a buyer in performance of the vendor’s contract, the buyer is not precluded from objecting to them by merely receiving them, for receipt is one thing and acceptance another. But receipt will become acceptance if the right of rejection is not exercised within a reasonable time, or if any act be done by the buyer which he would have no right to do unless he were owner of the goods.”
It is quite obvious from the evidence that, if the plaintiff had continued to prosecute the suit in Boston upon an assertion of a rescission of the contract of purchase, it would have failed in that action. It
“The mistake in stating the amount of Davis’ indebtedness was not calculated to mislead the defendant as to any matter disclosed to the agent. The fact that it did affect his conduct to his injury did not create an estoppel, unless the connection between the statement and the omission to obtain security were so proximately related that the agent knew, or ought to have known, that the defendant’s conduct in that respect would naturally result from the statements made. This cannot be said in respect to the transaction in question.”
And the rule as to estoppels was quoted in that case in the following language:
“Equitable estoppels are applied for the prevention of fraud, and are ordinarily based upon some action or declaration of a party intended to influence the action of others, and which it would be inequitable to allow to be gainsaid or controverted, because acted upon, and loss would ensue if a different position should be taken,”
—Which doctrine was laid down and applied in Board v. Otis, 62 N. Y. 96, and quoted with approval.
The defendants here cannot have the benefit of any assertion in the Boston action, nor of any adjúdication that might have been made in it,. That action was ultimately dismissed, and the facts which are disclosed by the evidence here indicate that it could not have been maintained; and the rule laid down in Quinby v. Carhart, 133 N. Y. 579, 30 N. E. 972, applies. At page 582 the court said:
“The plaintiff cannot have the benefit of the adjudication in that action, as he was not a party thereto. The doctrine of the election of remedies does not apply, and as to the plaintiff the defendants are not estopped by their statements or action in the Charleston litigation. They may have taken a false position in that action. But there is no rule of law prohibiting them from taking what they claim to be the true position in this."
There is no evidence in the case to indicate that the plaintiff knew or intended that any one should act on the faith of the representations made by Mills in the Boston action.
In Maguire v. Selden, 103 N. Y. 642, 8 N. E. 517, it was said: “An estoppel may not be based upon statements made to a third person, and not made to be communicated to the one claiming the estoppel.” ■
Of course, we are not considering the effect of the Boston suit as between the plaintiff here and Pratt or his assignees. We have a case where there was a prior election made by the plaintiff to accept the
2. The plaintiff was carrying on the manufacturing business wholly within this state. In People v. Campbell, 144 N. Y. 171, 38 N. E. 991, it was said: “The plain object of the exemption of manufacturing corporations carrying on manufacturing within tMs state from taxation, by the act of 1880, was the encouragement of production, and it was assumed that the employment of capital and labor in the business of manufacture here was a just ground for the exemption.” See People v. Roberts, 155 N. Y. 1, 49 N. E. 248. It was shown upon the trial, by the certificate of the comptroller, that “the Empire Manufacturing Company was entered as a corporation wholly engaged in manufacturing in the state of New York”; and the certificate concludes by saying, viz.: “And is therefore exempt from the provisions of chapter 240 of the Laws of 1895.”
3. We have looked at the exceptions taken during the progress of the trial, and upon the adjourned day, and are of the opinion that they present no error, and that there was no abuse of discretion reqrnring us to interfere with the rulings made by the trial judge. We think the judgment should be sustained.
Judgment affirmed, with costs. All concur.