| New York Court of Common Pleas | May 15, 1871
Lead Opinion
By the Court.
The first question,, and indeed the main one in this case, is whether the contract upon which the action was brought, was void by the Statute of Frauds. It involves these inquiries, (1.) whether the contract was one within the statute ; (2.) if it was, whether there was a
What the statute has in terms declared void is, every contract for the sale of goods, chattels or things in action, for the price of fifty dollars or more, unless there has been a partial delivery and acceptance, or a payment of some part of the purchase money, or a memorandum in writing subscribed by the parties;—but simple as this enactment is, the greatest difficulty has been experienced in determining, in many cases, wha't is a contract for the sale of goods and chattels, within the meaning of this provision. At an early period, a distinc- j tion was made between a contract for the sale of an article, j and one for the fabrication or manufacture of it; the latter, | in general terms, being regarded, as a contract for work and labor, and not a contract of sale, though the article when manufactured and ready for delivery would, as a personal chattel, come under the denomination of goods, wares, or merchandise.
Thus where a "party contracts for the production of something, in which the skill and labor of the person who fabricated it, is combined with the material which he employs, as in the production of a statue or of a painting, in which the material is comparatively unimportant, and the skill and laborj is the chief ingredient, it was regarded as a contract for worki and labor, and not for the sale of the painting or the statue, even though the price to be paid had been previously agreed upon.
In the case here put by way of illustration the distinction is obvious; but there are many contracts in which work or labor has to be performed after the contract is entered into, which are, in their inception, contracts for sale and do not lose that character, because work and labor have to be executed to perform them. Work and labor may be necessary in the delivery of the thing sold, or in putting it in a condition for delivery, which is very different from work and labor bestowed in the creation or production of the article contracted for. But even in the latter case, the contract may be in its nature, one
It is, however, sometimes very difficult to determine whether the contract is simply for the product itself, as an article of trade, or for the peculiar skill, care or knowledge which is to be bestowed in the production of it. The case now before us is one that involves that inquiry, and as there has been considerable conflict in the authorities as to what is or is not a contract of sale within the meaning of the statute, it will be necessary to inquire into the present state of the law, and amid the conflict of adjudged cases, ascertain the rules that now govern in the interpretation of the statute.
It may be stated as the result of several well considered cases that where the contract is for an article coming under the general denomination of goods, wares or merchandise, and it is made with one who manufactures and sells that kind of commodity to all who traffic in it, the quantity required, and the price being agreed upon, it is a contract of sale, and that it in no way affects the character of the contract in such á case, whether the manufacturer and vendor has, when the order is given, the requisite quantity on hand or has to manufacture it afterwards. (Gardner v. Joy, 9 Met. 179; Lamb v. Crofts, 12 id. 356; Atwater v. Howe, 29 Conn. 508" court="Conn." date_filed="1861-02-15" href="https://app.midpage.ai/document/atwater-v-hough-6577855?utm_source=webapp" opinion_id="6577855">29 Conn. 508; Eichelberger v.
But if what is clearly contemplated by the agreement is the skill, labor, care or knowledge of the one who fabricates the article or commodity, or if it would not have been produced iff the order had not been given for it, or, if when produced, it is unfitted for sale as a general article of merchandise, being adapted only for.use by the person ordering it;—then the con-j tract is one for work and labor, and is not within the statute. (Spencer v. Cone, 1 Met. 283; Mixer v. Howarth, 21 Pick. 207; Hight v. Ripley, 19 Maine, 139; Cummings v. Deunet, 26 id. 401; Allen v. Jarvis, 20 Conn. 38" court="Conn." date_filed="1849-07-15" href="https://app.midpage.ai/document/allen-v-jarvis-6576254?utm_source=webapp" opinion_id="6576254">20 Conn. 38; Cason v. Cheely, 6 Geo. 554; Crookshanks v. Burrill, 18 Johns. 59; Cartright v. Stewart, 19 Barb. 455" court="N.Y. Sup. Ct." date_filed="1854-09-04" href="https://app.midpage.ai/document/courtright-v-stewart-5458829?utm_source=webapp" opinion_id="5458829">19 Barb. 455; Parker v. Schenck, 28 id. 38; Mead v. Case, 33 id. 202; Clay v. Yates, 1 Hurl. & Norm. 73.)
The distinctions here presented are tests to determine whether a contract is or is not within this provision of the statute, though founded, as I have said, upon the authority of well considered cases, have not been very closely adhered to in this State, there being several decisions in our reports in which contracts have been upheld as contract for work and labor, not upon the ground that what was contemplated was the skill and labor of the one who was to furnish the article, but because the article was not m solido when the contract was entered into, but was to be made afterwards, either in whole or in part, from the raw material. Thus, in Sewell v. Fitch, (8 Cow. 215" court="N.Y. Sup. Ct." date_filed="1828-02-15" href="https://app.midpage.ai/document/sewall-v-fitch-5465076?utm_source=webapp" opinion_id="5465076">8 Cow. 215,) an order was given to the plaintiff’s agent for 300 casks of ‘ Thames cut nails ’ at cents per pound, and the agent having stated, when the order was received, that the plaintiffs had not that quantity on hand, but that' it could soon be made and obtained from the plaintiff’s manufactory, in Norwich, Connecticut, it was held not to be a contract for sale, but for work and labor.
The contract in this case of Sewell v. Fitch might, perhaps, have been sustained upon the ground that ‘ Thames cut nails ’
Sewell v. Fitch was followed in the still more doubtful case of Downs v. Ross, (23 Wend. 270,) Bronson, J., dissenting, in which a contract for a certain number of bushels of wheat at ten shillings per bushel, was upheld upon the ground that a part of it was then unthrashed, which the vendor agreed to get ready, as well as to give the whole of it a second cleaning, and deliver the entire quantity by a specified day—a case,. however, which must now be regarded as repudiated since the recent decision of the Court of Appeals in Smith v. The N. Y. Central R. R. Co. (4 Keyes, 199,) in which a contract for a quantity of wood, at a certain price per cord, which was thereafter to be cut from standing trees, measured into cords, and delivered at a railroad station, was held to be a contract of sale within the meaning of the statute, and not one for work and labor. wl£ -
The decision of the Supreme Court in Sewall v. Fitch, though regarded as erroneous, was followed by the Superior Court of this city in an analogous case, Robertson v. Vanghan (5 Sandf. 1" court="None" date_filed="1850-07-15" href="https://app.midpage.ai/document/robertson-v-vaughn-8357653?utm_source=webapp" opinion_id="8357653">5 Sandf. 1). The court adhered to it simply because it had been deeided for many years, and had doubtless been followed in numerous instances by inferior tribunals in the State, and, under these circumstance, it was thought better that the error involved in the decision should be left to be corrected by the court of last resort. It was also followed in Donovan v. Wilson (26 Barb. 138" court="N.Y. Sup. Ct." date_filed="1857-12-07" href="https://app.midpage.ai/document/donovan-v-willson-5459361?utm_source=webapp" opinion_id="5459361">26 Barb. 138), the same reason being assigned, that the error should be corrected by the Court of Appeals. These reasons are now ne longer of any weight, the decision of the Court of Appeals in Smith v. W. Y. Gentral F. F. Co. (supra), being directly in conflict with the construction put upon the statute in Sewall v. Fitch.
To illustrate what is within the statute, the case of Cason v. Cheely (6 Geo. 554), may be cited. In that ease, the agreement was for a crop of cotton to be delivered as soon as it could be gathered and prepared for market. The court held it to be a contract of sale and not of work and labor, for, said the court, the work and labor would have been bestowed in the production of the article if the contract had not been made; and they distinguished it from the making or production of an article unsuited to the general market, likening it to the case of the manufacture of goods wherein the manufacturer does not necessarily lose the result of his labor, for the reason that if the purchaser does not take the goods, others will. To the like effect are the cases of Garbut v. Watson (1 Dow. & Ky. 219; 5 Barn. & Ald. 613); Smith v. Surman (9 Barn. & Cres. 561); Watts v. Friend (10 Id. 446); Lamb v. Crofts (12 Mat. 356); Wilks v. Atkinson (6 Taunt, 11); Smith v. N. Y. Centred R. R. Co. (4 Keyes).
In Atwater v. Hough, (29 Conn. 508" court="Conn." date_filed="1861-02-15" href="https://app.midpage.ai/document/atwater-v-hough-6577855?utm_source=webapp" opinion_id="6577855">29 Conn. 508), it was held that a contract for one hundred sewing machines, part of which was not finished, but which were to be completed and delivered in the course' of the summer, was a contract of sale, within the meaning of the statute; and the same construction was put upon the Contract in Gardner v. Joy, (9 Met. 119), in which the defendant asked the plaintiff his price for candles, and the plaintiff named it; the defendant then ordered one hundred boxes, upon which the plaintiff replied, that the candles were not then manufactured, but that he would manufacture and deliver them in the course of the summer, and this was held not to be an agreement for work and labor, but a contract of sale. It is what may be called a very close case, as well as the one that
“Where a person stipulates for the future sale of articles' which he is habitually making, and which, at the time, are not' made or finished, it is essentially a contract of sale, and not a] contract for work and labor; otherwise where the article is " . . \ made pursuant to the agreement.” The distinction here showp serves to explain and limit the previous decision of the same t court in Gardner v. Joy, (supra); but, as a rule, it is not very)' clear, or very satisfactory.
It may. be stated as a conclusion to be derived from these cases, that if an order is given to a manufacturer for a certain quantity, at a certain price, of an article which he is habitually manufacturing and keeps on hand to supply orders, it is, in general terms, to be regarded as a contract of sale, and should be in writing to make it binding; for the party giving such an
The effect of the rule here laid down is, to convert every case of work and labor into a contract of sale, if the result of the work and labor be a product or moveable thing, which is capable of transfer by delivery—a construction, in my judgment, unwarranted by the language which was used in the enactment of the Statute of Fraud, and the sense in which that language has been interpreted by judicial decision for more than a century and a half.
The earliest work in which the meaning of words in ordinary and popular use was given is “ Phillip’s New World of Words,” the first edition of which appeared twenty years before the passage of the statute. In this work, I quote from the sixth edition, which appeared after the passage of the statute, the meaning of the word merchandise is given as follows: “ commodities or goods to trade withand this exact definition is given in the succeeding dictionaries of Kersey, Martin, and Bailey. It is said, in the Olossographia Anglicana Nova, that the word came into use as a term to designate the goods and wares exposed to sale in fairs and markets, which is affirmed also in OowelVs Law Interpreter, edition of 1708. The word “ wares ” is defined for the first time in Cotgrave’s Dictionary, ■ of 1632, as “ merchandise,” and in Phillip’s New World of Words, as “ merchandise, commoditiesand this is the definition successively given to it down to the time of Johnson ; showing that, up to the middle of the last century, it was regarded as having exactly the same meaning as merchandise: and, indeed, such would seem to have been the understanding of Johnson, who defines it, “ commonly, something to he sord.”
The first exposition I have found of the word “ goods ” is in Bailey’s large dictionary of 1732. He defines it simply u merchandise /” and by Johnson, who followed as the next lexicographer, it is defined to be “moveables in a house, personal or moveable estate, wares, freight, merchandise.”
The case of the ordering of the chariot (Towers v. Osborne, supra), appears to be the first reported case under the 17th
Indeed, this was understood to be the proper construction of the statute, and to be the law both in this country and in England thirty years ago, by a jurist so careful, accurate and eminent, as Chancellor Kent, who, in the text of his commentaries, says, “ that if the subject of the contract does not exist in rerum natma, at the time of the contract, but remains thereafter to be fabricated out of the raw materials, or materials not put together, it is consequently incapable of delivery, and not within the statuteand subsequently in a note, after examining the English and American authorities, he deduced from them what he supposed to be the rule, as follows: “ If the articles sold exists at the time in soUdo, and is capable of delivery, the contract is within the statute, but if the article is to be afterwards manufactured or prepared by work and labor for delivery, the contract is not,”—(2 Kent’s Com. 4 id. 504, 511n.), a rule which had, at least, the merit of a well defined distinction, easily understood, and whicli could be readily applied, but which, in the reactionary movement that has since taken place, has even in this country been materially departed from.
In the early part of the last century a question arose whether stocks or shares in a mining company were “ goods, wares or merchandise,” within the meaning of the seventieth
This ground of exception, the incapability of a partial delivery, has been distinctly repudiated in this country, and it has been held in Massachusetts and Connecticut, that stocks or shares in an incorporated company are embraced by the words, goods, wares and merchandise ; that there is nothing in the nature of stocks or shares, which in reason and sound policy, should exempt contracts respecting them from the operation of the statute; that so large an amount of property is now invested in them, and as the ordinary indicia of property arising from delivery cannot take place, there is a peculiar reason for extending the provisions of the statute to them; that the circumstances, they cannot be actually accepted and received, is-not at all conclusive, and would be a wrong and forced construction of the statute. (Tisdale v. Harris, 20 Pick. 13; North v. Forest, 15 Conn. 401, and see Calvin v. Williams, 3 Har. & J. 38.) The grounds, therefore, upon which the Eng
It has been decided in Maine that the sale of a promissory note is within the statute, and in New Hampshire that it is not. (Gooch v. Holmes, 41 Maine, 523; Whittemore v. Gibbs, 4 Fost. N. H. 484.) It has been held in England that the sale of a patent right, a very important species of property at the present day, is not within the statute, (Chanter v. Dickinson, 5 Man. & Gr. 253,) whilst if the decision in the New England cases I have cited respecting stocks is to be followed, it certainly would be.
This state of things in respect to the construction and meaning of a provision in a statute which has been in existence 'for nearly two centuries, is not now very pleasant to contemplate in view of what has been the experience of the past respecting it. “No act,” says Mr. Evans in his notes to the collection of the statutes, “ has been productive of greater litigation in settling its construction.” Daines Barrington said seventy-five years ago, that it was the common impression then, that it had not been expounded at a less expense than one hundred thousand pounds, and Chancellor Kent about forty years afterwards, was of the opinion that it had then cost upwards of a million pounds sterling. Lord Nottingham thought every line of it worth a subsidy; but he was the father of the act, or claimed the merit of having brought in the bill; (Ash v. Abdy, 3 Swanst. 664.) whilst Lord Main-field considered that important provisions in it, which ought to be plain to the meanest capacity, lacked the certainty requisite to make them plain to the greatest capacity, (Cadogan v. Kennett, Cowp. 434), and, certainly, the exposition which has here been given of the inconsistency and conflict that now exist as to what was meant by a contract for the sale of goods, wares, and merchandise, either brings this provision under the repeal of Lord Mansfield’s observation, or shows the folly of disturbing the construction so long given to these words.
Chief Justice Best said in Procta v. Jones, (2 Carr. & P. 532), that “the Statute of Frauds was much objected to at the time of its passage, and that the judges appeared anxious to get rid of it, but in later times became desirous to give to it its full effect;” and this loose statement, made upon a tflal at nisojprius, has recently been followed up by Justice E. Darwin Smith in Mead v. Case, (33 Barb. 206), who says that “ the English courts started off and long continued in the practice, if not in the theory, of regarding the statute unfavorably, and its simple text was persistently for many years nullified, perverted, or evaded by numerous decisions.” Ho reference is made by either of these judges to any authority for this statement, and I have looked in vain over the contemporary period for anything to corroborate it. Chief Justice Best made the remark above quoted, a century and a half after the statute was passed. He could have no better means of information than we possess, and so far from finding either of these statements sustained, the result of my examination convinces me, that the judge interpreted the statute in no hostile spirit whatever, but experienced great difficulty in understanding some of its provisions, from what is now universally conceded to have been the imperfect manner in which the act was drawn ; and it is difficult to see, why they should seek to “evade and nullify” the seventeenth section, when the effect of having contracts in writing, was greatly to abridge their own labors by releasing them from the difficulties incident to interpreting agreements founded only upon parol testimony.
The rule in equity is at least settled. But in the courts of law, especially in the English courts, this important provision of the statute respecting contracts of sale, is as fully thrown open for judicial consideration and discussion as it was in the beginning, and, what the community have a right to expect, some stability in the construction of an enactment affecting all engaged in trade or commerce, or who follow those handicrafts
Under a system like ours, in which the rights of individuals are determined by positive rules and the authority of adjudged cases, it is of more importance that a rule of construction should be stable than that it should be logically correct, and if it is to be constantly fluctuating and uncertain, as appears now to be the tendency in regard to this provision respecting sales, it were as well to be relieved from the authority of precedents altogether and follow the nations that adhere to the systems of the civil law.
This disposition to extend the operation of the section respecting sales, over what may be regarded as at least doubtful or uncertain cases, arises from the desire to give to the statute greater effect, as I judge from the high eulogiums pronounced by judges upon the wisdom and policy of its provisions. It is not the province, of judges to expound a statute according to their opinion of its wisdom and utility (Dwarris, 1 Evans, 211n.) ; but to declare what was enacted ; what was the meaning and intention of the framers of the act, and, where that has been ascertained by judicial decision long acquiesced in, courts are not warranted in disturbing it upon the ground that greater effect ought to be given to the statute. This is not interpretation, but judicial legislation, and the only excuse that could be made for it, is the one now given, that the judges would not, after the passage of the statute, carry it out, or give effect to its provisions, which, so far as I can learn, has been assumed only from the construction put at the present day upon their decisions. It certainly cannot be applied to Lord Loughborough, who, in distinguishing the case of the ordering of the chariot as one of work and labor, and therefore not within the statute, took especial occasion to commend the wisdom of the provision therein respecting sales.
If this reactionary movement grows out of the belief that it will tend to coerce men in a greater degree to put their contracts in writing, it is a vain expectation, for, in the complicated and rapid transaction of business at the present day, men have neither the disposition nor the time to put all they agree to in
Whatever opinion may be entertained of the beneficial working of this provision of the statute as a general regulation, its effect in the courts is not to augment or promote commercial morality in the particular instances, for in my long experience in presiding at the trial of causes, I have almost invariably seen it resorted to to defeat a contract or engagement fairly entered into, when, by reason of the depreciation.in value of the thing ordered, or like cause, it was found convenient to get rid of the obligation; and if the statute is to be carried now by judicial construction to the extent of declaring absolutely void, unless it is in writing, every engagement to make or pay for a thing, the possession or transfer of wdiich can pass by delivery; if this is to enter into and govern in all the transactions of every day life, to every article ordered or requisite, in the supply of our wants, necessities or luxuries, then it is prescribing, as a condition to the validity of the transaction, what is simply impracticable—what will not and cannot be complied with, and the great bulk of such transactions will be practically left to the integrity of the parties, and the statute invoked in aid of those who wish to get rid of their engagements.
If, as we have a right to presume from the preamble, the object of the statute was to prevent frauds and perjuries, and as a means to that end, a contract of sale was not allowed to be established by oral testimony, because it was a kind of evidence that could be readily fabricated, and otherwise defective and uncertain, it is to be remembered that the rules, which regulate the introduction, the bearing and the weight of testimony, were more imperfectly understood then than they are now. Baronet Gilbert’s treatise upon the law of evidence was notpublished until three quarters of a century after the passage of the statute, and even that* treatise, though extravagantly eulogized by Blackstone, is characterized now as “ a very meagre production,” (Marvin’s Legal Bib. 384), and how little
As a means of preventing fraud and perjury, the statute was founded in the same general policy which excluded the parties themselves from being witnesses, or any one who had the remotest interest in the result,—a practice which, after being tested and tried for several centuries, has been deliberately abandoned both in England and in this country, a change which so far from producing any injurious consequences has aided the administration of justice. “ Great apprehensions,” says Lord Mackenzie, in his recent work upon the Boman Law (p. 331, 2 ed.), “ were entertained that these changes might open the door to perjury, but experience has demonstrated that the latitude allowed under the new system, all objections to credit being duly weighed, is, on the whole, highly beneficial, by enabling courts of law to reach the truth in a multitude of cases where the ends of justice were formally defeated by excluding the testimony of the parties best acquainted with the facts in dispute.” Very possibly some such considerations, as those I have suggested, led a judge, so recent and so experienced as Lord Campbell, to declare that it would be better if the statute were abolished; to which may be added the remark of Lord Mansfield long ago, that the principles and rules of the common law, as developed and applied, were calculated to attain every end sought by the statutes against frauds. (Cadogan v. Kennett, Cowp. 434), and the observation of Coke that in his long career he had known but of two questions occurring upon the right of descent by the common law,—that the greatest questions arise not upon its rules and principles, but upon conveyances, wills, or instruments drawn by the unlearned, or upon statutes (Co. Rep., preface to Part II).
The enactment in the statute respecting sales may be a salutory one to protect men from having claims established against them by false testimony, or the proof of which rests only in human memory, and, it may be said, that it is, as a public regulation, productive of no especial injustice, where the omission to put the agreement in writing is attended by no other
I have gone into this extended examination for the reason that the case now before us is a peculiar and a close one, as the statute is now interpreted. The plaintiffs were manufacturers of an article known as “warps,” and tbe defendants of “ market nets,” an article in the fabrication of which, it would seem, warps were used. On the 25th of March, 1861, the defendants went to the plaintiffs, that the latter might fill an order for warps, and repeated orders for them, if they could do so, upon the terms upon which all warps had been furnished to the defendants for the preceding three years, and at the lowest market price, and that the defendants would pay for all the warps purchased in one month at the end of the following month. The next day the plaintiffs answered' by letter that
The day after the receipt of this letter the plaintiffs sent the 88 warps in a wagon to the defendants’ mills, in Paterson, New Jersey, and tendered them to the defendants’ superintendent, who replied that his instructions from Mr. Hoffman were not to receive them. Twenty days afterwards, the president of the plaintiffs’ company called upon the defendant Mr. Hoffman, and informed him that the plaintiffs had the balance of his order, 38 warps, and requested him to receive them, which he declined, saying that he had not ordered them. They were then worth about 63 cents a pound. The plaintiffs 'waited until the 19th of June, 1867, when they advised the defendants by letter that they had sent the 38 warps to an auctioneer in the city, to be sold at auction, informing the defendants of the place, and of the day and hour of the sale, and that they would hold them responsible for the difference between the contract price and the price they might bring. They were accordingly sold at action, at the time and place named, for 43 cents a pound, the sale having been duly advertised and a large number of persons being present. The contract price for the 38 sold was $1,064, and they brought at the auction sale $617.39, making a difference of $446.61, which amount the plaintiffs have recovered in this action.
The defendants’ superintendent testified that the warps were such as the plaintiffs generally manufactured and had on hand. The spring of the year is the plaintiffs’ busy season, and their superintendent testified that they did not, in the busy season, have these warps on hand. Mr. Ridgwav, the president of the plaintiffs’ company, testified that he did not know' whether they had any warps on hand when the first letter was received from the defendants, nor could he tell how many they had on hand during the subsequent correspondence; that they were manufacturing similar warps for other persons
I think this must be regarded as an agreement between the plaintiffs and the defendants for the manufacture of the fifty "warps, and that it was not a contract of sale within the meaning of the statute. It has several distinguishing features. In the first place, the article is one of a peculiar kind. In the next place, the number contracted for was to be produced and delivered as the defendants wanted them. In the third place, it is a fair presumption, from the evidence, that they were all manufactured after the order for them was accepted. Wilson, the defendants’ superintendant, said they were such as the plaintiffs generally manufactured and had on hand. Ridgway, the president, could not say whether they had usually warps of this description on hand from the time that the contract was
Though I do not regard this as a contract of sale, and think that our decision should be put upon that ground as the proper
It may be doubtful if there was sufficient proof of a memorandum in writing of the contract subscribed by the parties to be charged. (2 Rev. Stat. 140, § 3, subd. 1.) It is not necessary that it should be comprised in one paper. It may be embraced in several, but they must be connected with, and refer to, each other, and the mutual relation of the writings must appear upon the face and cannot be established by parol evidence, it being the policy of the statute to take the cases enumerated entirely out of the reach of verbal testimony. (Wright v. Weeks, 25 N.Y. 153" court="NY" date_filed="1862-09-05" href="https://app.midpage.ai/document/wright-v--weeks-3615095?utm_source=webapp" opinion_id="3615095">25 N. Y. 153; Stocker v. Partridge, 2 Robt. 193; Greenleaf on Evidence, § 268; Browne on the Statute of Frauds, 346, 3 ed., and cases there cited.)
In the ease before us, the defendants’ letter was simply a proposal that the plaintiff should accept an order for fifty warps instead of one hundred, at the price of seventy cents. This was the exact language used, and, the existence of a contract or not, depended on the acceptance of the order upon the terms proposed. The acceptance was by letter, but the contents of this letter, as well as the fact that it was mailed to the defendants, was established by parol evidence. No exception was taken to the proof, and as the letter is presumed to have reached the defendants in due course of mail, and might have been produced by them before the referee, it may be that this was sufficient proof of an acceptance in writing. (Watts v. Ainsworth, 6 Law T. N. S. 252.) But if there be doubt on this point, there was sufficient evidence of a delivery and acceptance of a part of the warps, to take the case out of the operation of the statute.
The agreement was an entirety. It was for fifty warps at a fixed price. This appears by the letter in which the order was given, and by the plaintiffs’ letter of acceptance, and when the latter letter, addressed to the defendants, in New York, was mailed to them by the plaintiffs, at Paterson, in New Jersey, the contract was complete. (Vassar v. Camp, 11 N.Y. 441" court="NY" date_filed="1854-09-05" href="https://app.midpage.ai/document/vassar-v--camp-3620492?utm_source=webapp" opinion_id="3620492">11 N. Y. 441, and the cases there cited.) The correspondence did not desig
The remaining questions in the case may be summarily disposed of. The defendants having refused to accept and pay for the residue of the warps, the plaintiff had the right to sell them, and hold the defendants for the deficiency. (Sands v. Taylor, 5 Johns. 395" court="N.Y. Sup. Ct." date_filed="1810-02-15" href="https://app.midpage.ai/document/sands--crump-v-taylor--lovett-5472547?utm_source=webapp" opinion_id="5472547">5 Johns. 395.) They gave the defendants notice of the time and place of sale, although, strictly, even this was not necessary. (Lewis v. Greider, 49 Barb. 606" court="N.Y. Sup. Ct." date_filed="1867-09-02" href="https://app.midpage.ai/document/lewis-v-greider-5461532?utm_source=webapp" opinion_id="5461532">49 Barb. 606.) The sale was by public auction, which, as a general rule, is the appropriate and proper way to ascertain the value of the thing at the time, and if, as appeared, there was no market price for warps at that time, and that they were an article not usually sold at auction, it does not lie with the defendants to complain, for having had ample notice of the sale, they might have attended it and protected themselves by buying the warps, if the price they brought was below their value. The report of the referee should be affirmed.
Van Brunt, J. I concur.
Present—Daly, Ch. J., Van Brunt and Loew, JJ.
Concurrence Opinion
I concur in the conclusion arrived. at by the Chief Justice.
Judgment affirmed.