125 N.Y. 742 | NY | 1891
The following are extracts from the opinion:
“ It does not appear from the record that the Statute of Limitations was considered by the court below as constituting a defense. Both parties left Texas within, at most, a few months after the transaction. The plaintiff has never resided in New Jersey, and the deffendant did not remain in New York long fenough for the statute to run. As the statute does not seem to be made a ground of defense in the argument for the defendant, we may dismiss that branch of the case without further examination.
“ It does not appear that the alleged illegal character of the contract entered into the decision of the case in the courts below. The point is not passed upon or referred to at all in the opinion of the General Term. Generally, it may be said that contracts between the citizens of the states in rebellion against the authority of the United States, made during the war, and not in aid of the rebellion, were not invalid. (Cutner v. U. S., 17 Wall. 517; Mitchell v. U. S., 21 id. 350; Gavinzell v. Crump, 22 id. 308; Conrad v. Waples, 96 U. S. 279.)
“ The defendant and Kingsbury undertook jointly to sell the cotton for the plaintiff’s firm and were jointly interested in the profits of the transaction as such. Their obligations to the plaintiff, and their power to bind each other in the conduct of the enterprise must be determined upon the general principles applicable to partnership transactions. It was, however, upon the evidence a particular or special, as distinguished from a general partnership, and the power of Kingsbury to bind the defendant extended only to acts necessarily connected with the sale and delivery of the cotton. ( Williams v. Lawrence, 47 N. T. 462; King v. Sarria, 69 id. 25; Union Bank v. Underhill, 102 id. 336.) ”
It appeared from the evidence collated in the opinion, that Kingsbury sold the cotton to a firm in Mexico and received the pay therefor, but failed to deliver it in accordance with his agreement, because of his inability to obtain a permit from the military authorities, and a consequent refusal of the person who held the cotton to deliver it. ’ Kingsbury thereupon returned the purchase-money.
The court say:
“ In this condition of things Kingsbury had the power to bind the defendant by rescinding the sale and returning the money. While it is true that this power to bind the defendant would terminate when the joint enterprise was completed, it cannot be said that the business of the joint venture was completed until the cotton was delivered. They had received the money from the purchasers in anticipation of such delivery, and, not being able to comply with the prerequisite or condition of the sale, common honesty required that they should restore the money. This operated, under all the circumstances, to rescind the sale and discharge the defendant from liability for the money deposited with San Roman.” * * *
“In a word, the case stands as if the defendant and Kings-bury never contracted to sell the cotton, and never received
“ The judgment should, therefore,, be affirmed.”
reads for affirmance.
Judgment affirmed.