49 Misc. 473 | N.Y. App. Term. | 1906
Dissenting Opinion
I dissent from the conclusion reached in the prevailing opinion that the defendant sought by his defense merely to show the entire agreement and not to alter or reform the writing. The agreement in question is as follows:
“ I, O. G. Glover, of the city of Hew York, doing business at 100 Hassan street, borough of Manhattan, city of Hew York, party of the first part, do hereby contract with Frank E. Gore, of the city of Hew York, party of the second part, to build for the party of the second part, for the sum of six hundred ($600.00) dollars, and to be delivered in six weeks from date of this instrument the following described machinery:
“ Six number 6% inch O. G. Glover Hational Wire
“ G. G. Glovee.
“Witness: John A. Rooney.”
The installments were paid by the plaintiff as provided; but, after the machines were built, instead of delivering them to the plaintiff, the defendant sold them for the sum of $990, turning over to the plaintiff oidy $520. This action is brought in conversion to recover the difference of $470.
The defendant pleaded, and was allowed to give evidence at the trial, that the transaction was a loan of money and not a purchase of the machine and that only the sum of $80 with certain interest remained due, for which amount the court rendered judgment, and from which judgment the plaintiff has appealed. The plaintiff’s attorney made proper objection on the ground that the parol evidence admitted tended to alter, vary and contradict a written contract and on the ground of the lack of jurisdiction of the court to entertain the defense.
I recognize the role referred to in the prevailing opinion that it is competent to show by parol evidence that an absolute bill of sale was intended to operate as a chattel mortgage simply. This rule and its history were discussed in Marsh v. McNair, 99 N. Y. 174, where the court observed that the rule was an exception to the general rule of evidence forbidding the contradiction or explanation of written instruments by parol evidence and that it had long been established in the law of this State; that it grew up in the equity courts from the efforts of equity judges to prevent forfeitures, to relieve against frauds and to enforce the equitable maxim, “ Once a mortgage always a mortgage ”. It was supposed that the evidence did not contradict the instrument, bit*
“ This is to certify that in consideration of crediting CL H. Marsh at the Exchange Bank of Lima, $363.72, paying mortgage (on property formerly deeded by J. B. Marsh, in Avon, to O. W. Gibson) given by William F. Bussell to 0. H. Marsh, $110.46, and endorsing $35.82 note made by 0. H. Marsh June 8, 1871, for $300, we jointly and severally sell, assign and transfer all our right, title and interest to two policies, Nos. 4277 and 4287, upon the lives of Charles H. Marsh and John B. Marsh, issued by the National Life Insurance Company of the United States of America to Chauncey W. Gibson, of Lima, N. Y.
“ Dated Avon, N. Y. May 23, 1872.
“ J. B. Marsh,
“ C. H. Marsh,
“Mart Marsh.”
Upon the trial, the plaintiff gave parol evidence tending to show that the instrument was executed by her upon the assurance that it was only intended as collateral security and that she signed it for that purpose.
In summing up its conclusion, the court held that both instruments must be construed together, and said (p. 179) : “ This instrument is more than an assignment. It contains
All this is as true of the contract before us in this case as it was of that contract.
So far as concerns the danger that injustice will be done if this judgment is reversed with an opinion which would virtually compel a judgment in plaintiff’s favor upon a new trial, that is a consideration which ought not to influence this court in a case as plain as this upon the law.
The same consideration is present in many cases where the rule against varying a writing by parol is enforced.
Moreover, it is by no means clear that the defendant would be without a remedy. In this case, as in Marsh v. McNair, supra, there was no allegation or proof that the •execution of the instrument was induced by any fraud or that it was executed by the parties under any mutual mistake of fact, but, simply, that the instrument was intended to be held and used as collateral security. The court further •observed in that case that, if the plaintiff could show that the agreement failed to express the real intent of the parties, through their mutual mistake, she could have it reformed; •or, if she could show that she was induced to execute it by the fraud of Gibson, she might have it annulled.
It is true, therefore, in one sense, that no question of the power of the Municipal Court to entertain an equitable •defense is involved in this appeal, because, as just shown, the judgment is one that should be reversed even if obtained in a court having equity powers;
If, however, a reversal had been ordered, then the question of the power of the Municipal Court would be involved in determining which, if either, of the remedies pointed out •in Marsh v. McNair, supra, would be available to the de
Where, however; the defense is not based on fraud, but on grounds cognizable only in equity, I do not think the Municipal Court could entertain it, as its power to entertain equitable defenses is limited to such defenses in summary proceedings. Mun. Court Act, § 2, subd. 2.
The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
Judgment affirmed, with costs.
Lead Opinion
In my opinion, no question as to the power of the Municipal Court to entertain an equitable" defense is involved in this appeal. The defendant does not seek, by his defense, to alter or reform the written instrument, but merely seeks to show the entire agreement between the parties. Every chattel mortgage involves, in terms, an absolute transfer of title; and, in contemplation of law, the title does pass to the mortgagee subject to being divested by the performance by the mortgagor of the conditions. It is that condition which distinguishes a chattel mortgage from an absolute bill of sale; and it is well settled that the condition need not be inserted in the bill of sale itself, but may be evidenced by a contemporaneous agreement outside of the bill of sale. This is what the defendant contended and the court found was the state of facts in the present case. It is apparent that justice has been done by the judgment appealed from and there is grave danger that injustice would result if we were to reverse the judgment with an opinion which would virtually compel a judgment in defendant’s favor upon a new trial. We should not be astute to'find a means of attaining that end. ■
The judgment should be affirmed with costs.
Gbeenbaum:, J., concurs.