144 N.Y.S. 48 | N.Y. App. Div. | 1913
The plaintiff in this action was appointed receiver of the Sidney Valve and Supply Company in supplementary proceedings, and brings this action, under an order of the court, to recover a sum of money alleged to have become due to the Sidney Valve and Supply Company under the provisions of section 65 of the Personal Property Law. The facts are stipu
On the 11th day of April, 1908, the defendant sold and delivered to the Sidney Valve and Supply Company certain lathes and milling machines to the agreed value of $2,256, on a conditional sales agreement which provided that the purchase price should be paid by $564 in cash, and three notes for equal amounts to become due in the years 1908 and 1909, and the “title to remain in the said Prentiss Tool and Supply Co., until all payments are made in full, * * * but if default shall be made in said payments, * * * then * * * the said Prentiss Tool and Supply Company * * * may * * * assume actual possession of said machinery, and the payments theretofore made shall be considered payments on account of the use thereof only, or it may allow said machinery to remain, and proceed to collect the said sums.” The cash payment was made, and subsequently payments bringing the amount up to $828 were made, and in November, 1908, the Sidney Valve and Supply Company defaulted in its payments and the defendant in this action became entitled to repossess itself of the property under the terms of its agreement. On the 22d day of December, 1908, the defendant wrote to the Sidney company asking if that company had “any proposition to make us for the payment of amount due on the machinery belonging to us ? * * * We must have a proposition from you at once in this connection if you desire to keep this machinery. We request that you reply to this letter promptly and oblige.” A correspondence followed, dealing with the details of the machinery, etc., and on the 25th day of February, 1909, the defendant wrote the Sidney company that “ We think the best way to clean up this matter is for us to accept the machinery covered by the contract amounting to $2,256 in settlement of the balance due us. It is doubtful if this proposition will let us out whole, but it will enable us to close the matter up and get it out of the way, so that if this is satisfactory to you — and surely it ought to be—we will send our representative to Sidney in the near future to attend to the reshipment of this machinery. We shall ask you to afford
There can be no doubt, we think, that the provision in the contract that the “payments theretofore made shall be con
The judgment appealed from should be affirmed, with costs.
Judgment unanimously affirmed, with costs.