Moran v. Abbott

50 N.Y.S. 337 | N.Y. App. Div. | 1898

Hatch, J.:

The piano, which is the subject of this action, came into the possession of the defendant Abbott by virtue of a lease of the same, coupled with a conditional agreement of sale. By the terms of this agreement Mrs. Abbott was to pay for the use of the .piano $7 ■a month, and when she had paid the sum of $425 the vendor was to transfer title by bill of sale, the title prior to payment to remain in the vendor. The plaintiff is a receiver of this contract, and of all rights thereunder, having been appointed in an action brought by the Mathushek Piano Manufacturing Company against James Pearce, who w'as Mrs. Abbott’s vendor. At the time this-action was brought there was due upon the contract about $180, and default in payment had been made by Mrs. Abbott. When the piano was delivered, in pursuance of the contract, Mrs.-Abbott was unmarried and living with her mother. After her marriage she removed to New Jersey and the piano was left in the custody of her mother. The family moved after the delivery of the piano, and it was, then removed with the knowledge of the vendor, although no written consent of removal was given by the vendor as provided in the contract. The piano was subsequently removed from the house of the mother to that of her son, the defendant Curry, and was replevined from the latter’s possession. The only question presented by the record relates to whether a demand for the sums due under the contract, or for a return of the property, was made before the action was begun. The possession of the defendant was a lawful possession, and before the action could be maintained it was-essential that a demand for a delivery of the property should have been made. (Goodwin v. Wertheimer, 99 N. Y. 149.) The court ruled that no such demand had been established and directed the jury to find a verdict for the defendant. To this ruling the plaintiff excepted. While the, piano was in the possession of the mother the plaintiff called upon her and informed her of his ' appointment as receiver and requested her to make payment. She had been anthorized by Mrs. Abbott to represent her in connection with the contract, consequently a good demand could have been made upon her. No such demand was made by the plaintiff at this time. He then called to give notice of his title and requested payment, and, upon Mrs. Curry’s informing him that she was not prepared to pay, he arranged that another should call subsequently and receive it. This was sufficient to constitute a demand for payment, but he made no demand in the alternative for payment or delivery of the property. Sherry, the agent of the plaintiff, testified that he called at Mrs. Curry’s thereafter several times to obtain the money, and: at these- times demanded payment. But at no time does he claim that he demanded a return • of the chattel. This - testimony, therefore, fails to establish such demand as the law requires. The -subsequent demands by Sherry were denied by Mrs, Curry, and if the demand had answered the •requirement, it would still have left a question of fact for the jury.

The plaintiff, however, relied upon a written demand which his attorney testified he made.upon Mrs., Abbott: This demand was in the form of a letter which. the attorney wrote .to her, and sent by mail to her address in Few Jersey. It was in. all respects sufficient in form to constitute a good demand. Mrs. Abbott denied having ever received it. The testimony of the attorney was to the effect that he wrote the letter, sealed it in an envelope, deposited it in the post office in Few York, directed as -above stated, and that it had never been returned to him. ■ It is undoubtedly the presúmption that a letter, properly mailed and addressed to the person at his or her . place of residence, was received by such person. (Oregon Steamship Co. v. Otis, 100 N. Y. 446.) The learned court ruled, however, that the positive" denial of Mrs. Abbott overcame such pre-. sumption. In this ruling we-think the court was in error. Mrs.. Abbott was a person interested in the event of the action, and it was within the province of the jury to reject her statement entirely. Consequently when the proof upon this subject was all in, it pre-' sented a question of fact which was for the jury to determine, and not the court. (Kingstand Land Company v. Newman, 1 App. Div. 1.)

The removal of ■ the piano from the mother’s house to the son’s cannot be treated' as a conversion as matter of law so as to dispense with the necessity for a demand. The proof shows, as . we have seen, that the piano had been removed prior to the last removal, although no consent was obtained, and- the vendor, with knowledge, raised no objection thereto. The jury might well say, in view of this circumstance,, that there was waiver of this provision of the contract, and infer consent upon the part of the v.endeé that the piano might be removed as convenience or necessity dictated. There was nothing in the removal which indicated an intent to secrete it or place it beyond the reach of the vendor or his successoT in interest. The occasion for the removal was, or the jury might have so found, that the room at Mrs. Curry’s was too small to conveniently keep it there, and that this was the only reason why it was removed.

The error above noted seems to require a reversal of the judgment and the granting of a new trial, costs to abide the event.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.