| N.Y. App. Div. | May 2, 1924
It appears that the plaintiff, a mercantile corporation in the Philippine Islands, procured the opening of a letter of credit in New York city in favor of one Murat Bey, to be drawn on by drafts accompanied by invoices and parcel post receipts evidencing the shipment of the goods invoiced; that plaintiff ordered of Murat Bey certain goods which Murat Bey purchased from the defendant, who, at Murat Bey’s request, forwarded the goods by parcel post to the plaintiff, delivering to Murat Bey the parcel post receipts upon his representation that he would use the same to procure the money and bring the cash back to the defendant. He failed to return with the cash, and the defendant stopped the delivery of the packages and reclaimed them from the Post Office Department.
The appellant’s contention is that the goods were obtained by trick and device, in that Murat Bey had no intention of paying for the goods and induced the defendant to deliver the parcel post receipts upon the false and fraudulent representation that he would return with the money. The receipts, however, did not represent the goods, but merely constituted evidence of their shipment. The goods were shipped before this alleged fraudulent representation was made. The goods, therefore, were not delivered upon such false representation. In order to permit of a seller disaffirming the sale and recovering the goods, there must be proof of a preconceived design on the part of the purchaser not to pay for the goods. (Nichols v. Pinner, 18 N.Y. 295" court="NY" date_filed="1858-12-05" href="https://app.midpage.ai/document/nichols-v--pinner-3578237?utm_source=webapp" opinion_id="3578237">18 N. Y. 295; Wright v. Brown, 67 id. 1.) There is no proof of such an intention, since the fact that Murat Bey failed to keep his promise given to induce the delivery of the parcel post receipts after the goods had been shipped did not in any way emanate from the plaintiff. Upon the trial the contention of the plaintiff was that the defendant had sold the goods to Murat Bey on credit, and in this connection it appeared that the defendant’s ledger showed an original entry in the form of a sale on credit, which was changed by striking out as defining the terms of sale the word “ regular ” and substituting the word “ cash.” Both parties having moved for the direction of a verdict, any conflicting inferences from the facts shown must be deemed determined in plaintiff’s favor, with the same force as the verdict of a jury. (Glanzer v. Shepard, 233 N.Y. 236" court="NY" date_filed="1922-04-18" href="https://app.midpage.ai/document/glanzer-v--shepard-3580404?utm_source=webapp" opinion_id="3580404">233 N. Y. 236, 242.) Hence the trial court has found that there was a sale on credit and there is evidence sufficient to sustain such finding.
Moreover, even if it be assumed that the goods were fraudulently procured by Murat Bey, his title was not void, but voidable merely at the option of the defendant, provided such option be exercised before the transfer of the goods to a bona fide purchaser for value and without notice. (Pers. Prop. Law, § 105, as added by Laws of 1911, chap. 571.) Not offiy were the goods transferred to such a purchaser before such repudiation, but they were transferred and the safeguards which the plaintiff had imposed for its protection were complied with through the knowledge and assistance of the defendant, who made it possible for said Murat Bey to obtain from the plaintiff the purchase price of the goods by intrusting to Murat Bey the parcel post receipts. Under these circumstances,
It follows that the judgment should be affirmed, with costs.
Clarke, P. J., and Martin, J., concur; Merrell, J., dissents.
Judgment affirmed, with costs.