187 A.D. 473 | N.Y. App. Div. | 1919
This motion challenges the sufficiency of plaintiff’s complaint. It is alleged in the complaint that the defendant sold to the plaintiff certain goods, wares and merchandise “ on certain terms and conditions as to price, quantity, quality, time of delivery and time of payment; that a duplicate copy of said memorandum of sale was executed by the defendant and delivered by said defendant to the plaintiff and that the other duplicate of said memorandum of sale was executed by the plaintiff and delivered by said plaintiff to the defendant; that a copy of the said memorandum of sale which was executed by the defendant is hereto annexed, marked Exhibit ' A ’ and made part of this complaint with the same force and effect as though fully set forth herein.” It further
The memorandum of sale which is annexed notes the sale of about 1,000 pounds of silk yam, the terms being stated as follows: “ 90 Days Net (Line of credit to be adjusted by Mr. Kay).”
While upon this motion the answer of the defendant can have no bearing, nevertheless, the point of difference between these parties is emphasized by the separate defense alleged. That defense reads as follows: “ Defendant alleges that on or about the 10th day of November, 1917, plaintiff requested the sale to it by defendant of one thousand pounds of silk yam of the kind described in the sale memorandum, copy of which is attached to the complaint as Exhibit A, and that defendant verbally agreed to sell said silk to it on terms as to credit to be adjusted between the parties after an investigation of plaintiff’s financial responsibility. That pursuant to this understanding defendant signed and mailed to plaintiff a duplicate sale memorandum in the form attached to the complaint as Exhibit A containing among other terms the provision that the plaintiff’s line of credit was to be adjusted, and asking a return of the duplicate memorandum signed by plaintiff. That plaintiff has never returned said duplicate signed nor has it ever made any attempt to adjust its line of credit, although up to January 22d, 1918, defendant
A complaint which is immune from attack must state facts sufficient to constitute a cause of action. The memorandum of sale attached to the complaint as Exhibit A specifically provides that the line of credit was to be adjusted by Mr. Kay. Mr. Kay was unquestionably the creditman of the defendant. This provision is not an unusual provision to attach to memoranda of sales executed by the sales agents. It has, I think, a well-defined meaning to the effect that if this creditman of the vendor has doubt of the credit of the vendee, the vendor would have the right, under the memorandum of sale, to require such security as might be deemed safe or to require payment in cash, and the terms “ 90 Days Net,” are deemed qualified by this right reserved in the creditman of the vendor to approve of such terms or to make other terms as might be deemed necessary to the vendor. There is no allegation in the complaint that the line of credit had at any time been adjusted by Mr. Kay, nor that there had been any request that the line of credit be so adjusted, and the only demand for the goods that is pleaded is the demand for the goods under the terms of the contract. It is undoubtedly true that the plaintiff might within a reasonable time have offered cash for the goods and compelled their delivery. Without the offering of the cash, however, the cause of action is incomplete, because of the failure to allege that the line of credit had been adjusted, or that request had been made to have the same adjusted, which request had been refused.
Even if my interpretation of this clause in the contract as to the adjustment of the line of credit be not justified,
In my judgment the complaint does not state a cause of action and the order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to plaintiff to serve an amended complaint upon payment of said costs.
Clarke, P. J., Page and Shearn, JJ., concurred; Dowling, J., dissented.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to serve an amended complaint upon payment of said costs.