71 N.Y.S. 1015 | N.Y. App. Div. | 1901
The conclusion reached by the County Court seems, from the opinion printed in the record, to be solely based upon this dictum
We are not prepared, however, to give credence to a proposition so serious in its bearing upon commercial affairs, and are inclined to the belief that contracts of this class have the same inherent capabilities as to self-enforcement and the same right to command the aid of the courts to compel enforcement as have other valid contracts.
With the questions as to whether the remedy by a resale or the remedy by action for the difference between the contract price •and the market price are either of them available to the seller, where the seller stipulates to retain title until final payment, we have-nothing to do and express no opinion. It is obvious, however •that only in exceptional cases could there be any difference between the selling price and the market price in the case of merchandise so contracted to be sold, and hence this remedy, if available, would prove to be fruitless since no damages by this measure could be proven. Perhaps Earle v. Robinson (supra) is authority for the proposition that' the remedy by resale is not available since that question was in a measure involved in that case.
This is the declaration of a principle, and not a theory; and it is a principle which has obtained in its entirety in the court of last resort in this State to the present time. It is the law applicable to all contracts. This was said in an action brought to recover a past due installment covenanted to be paid in a contract for the sale of land. The contract contemplated that title should not vest in the buyer until payment of the final installment. The court held that the action was well brought, and the promised payment could be recovered although the property remained vested in the seller.
. The same doctrine was held in Paine v. Brown (37 N. Y. 228) and in Eddy v. Davis (116 id. 247). The fact that the subject of the contract in these cases was land in no way weakens the doctrine as to its universal applicability as the law of contracts.. It makes no difference whether the subject be land or merchandise.
In Meriden Britannia Company v. Zingsen (48 N. Y. 252), Earl, J., writing for the court, applies the doctrine declared in Morris v. Sliter, in its entirety, to a sale of a chose in action. In. that case the defendant contracted to deliver, in the following Febr ruary and March, certain plated ware, in payment for a claim
These cases would seem to set at rest the question of the necessity of the title vesting in the buyer before payment of any part of the purchase price can be enforced by action.
Our attention is called by respondent to the following cases, which it is claimed are authority for the conclusion of the learned County Court: Earle v. Robinson (91 Hun, 363); Ackerman v. Rubens (44 App. Div. 227), and National Cash Register Company v. Schmidt (48 id. 472).
Earle v. Robinson fails to be authority for the reason that the question here presented was not involved in that action. It was not up for discussion or decision. What was then said by the learned justice writing the opinion, which might by any implication bear on this question, is to be regarded as dictum only.
Ackerman v. Rubens is not authority upon this question, for the reason that not even by dictum is the subject referred to. The only matter sought to be disposed of was the sufficiency of the evidence of damages by a resale when the seller becomes the buyer, and the conclusion of the Appellate Division on. this question was reversed by the Court of Appeals in June, 1901. (167 H. Y. 405.)
In the case of National Cash Register Company v. Schmidt, as reported (48 App. Div. 472), it is not disclosed whether the action was brought to recover the purchase price agreed upon or any past due installment of the purchase price, or whether it was brought for damages on account of a breach of the contract by the buyer. From the opinion in the case it would appear that the action was for damages. The learned justice writing the opinion, after stating the facts as to the breach, says : “ He, therefore, became liable in damages for non-acceptance under the rule that when a vendor has
In the following cases the precise question involved in the case at. , bar was ably discussed and decided: Brewer v. Ford (54 Hun, 116), in which the opinion was written by Barker, J., and Marvin Safe Co. v. Emanuel (21 Abb. N. C. 181; S. C., 14 N. Y. St. Repr. 681) These cases hold that the seller, under a contract like the one here-considered, may sue for and recover each installment of the purchase price as it matures. I have been unable to find any case where it was apparent that this question was directly involved which holds to the contrary.' Upon both reason and authority, therefore, the judgment in this case should be reversed.
All concurred, except Parker, P. J., dissenting.
Judgments of the County Court and City Court of Albany-reversed, with costs, and costs in the courts below and a new trial granted in the City Court of Albany; order to be settled by Kellogg, J.