158 F. 458 | S.D.N.Y. | 1907
The inquiry concerns the nature of “memorandum” transactions now so common in mercantile circles. The question is primarily one of fact, and from the affidavits submitted I find that the goods when delivered were accompanied by an invoice, stating their delivery on “memorandum,” and declaring them to be at risk of the person to whom delivery made. The invoice did not state any charge against Schindler, but did give the price per yard of the material delivered. The expectation of both parties was that, if Schindler signified his desire to keep the goods within 30 days from delivery, they would be charged to him on the vendor’s books. If he did nothing, they were charged as of course at the expiration of the 30-day period. Within 30 days the goods could be returned without liability on Schindler’s part. So far as the bankrupt was concerned, he preferred to take goods on memorandum rather than by immediate purchase, chiefly, if not wholly, because his term of credit would run from the end of the 30-day period rather than from date of delivery. This desire of his does not in my opinion change the legal result. Schindler had a 30-day option to purchase the goods if he liked. The privilege of return rested entirely with him, and was not dependent upon any act of Dommerich’s. It was therefore a contract of “sale or return” of the kind described as a purchase if the purchaser likes, and within the ruling of Hunt v. Wyman, 100 Mass. 198, approved in Sturm v. Boker, 150 U. S. 329, 14 Sup. Ct. 99, 37 L. Ed. 1093, and again in Guss v. Nelson, 200 U. S. 302, 26 Sup. Ct. 260, 50 L. Ed. 489, and also followed in Carter v. Wallace, 35 Hun, 189. Title did not pass to Schindler until the exercise or expiration of his option; expiration being by agreement the equivalent of affirmative action.
The receiver will therefore surrender the goods received on September 30th, and the motion will be denied as to the goods delivered on September 21st.
