97 Misc. 684 | N.Y. App. Term. | 1916
The defendant, on or about the 24th day of April, 1914, made a contract with the plaintiff for the conditional sale of certain chattels. The contract was. apparently made on a printed form and provided, among - other things, that the plaintiff has ordered “ the following mentioned goods.
“ A deposit is required on all orders. Restaurant fixtures and labor and material as per specifications hereto attached and plans approved. * * * Price Three Thousand Dollars. * * * Goods to be delivered and erected on the 25th day of May, 1915. * * *
" On failure to pay any note or cash instalment when same becomes- due, then all notes and instalments remaining unpaid shall immediately become due, and said Company shall be entitled to the immediate possession of the property herein described (and whereas a considerable portion of the above purchase price represents labor, time and expense in placing said fixtures in my premises which is entirely lost and of no value in the event that you retake the same, in the event of you so retaking said chattels as aforesaid all payments that may have been made by me prior to that time on account of the purchase price for said chattels, shall belong to you as liquidated damages for the use of the said chattels by me up to that time), and I do hereby expressly waive all benefits that I may have by reason of Chapter 418 of the Laws of
“ The undersigned agrees to keep said chattels insured from loss by fire for not less than $3,000. from the delivery thereof until the principal sum herein is paid, the benefit to be payable to said Company, and in default thereof said Company may insure same at the cost of the undersigned. * '* *
“ It is agreed that the foregoing shall constitute a conditional sale of said chattels to the undersigned, and that there are no precedent or contemporaneous conditions not stated herein.”
Attached to the contract were the specifications for labor and material which show that the defendant was required to do considerable work to prepare the premises for the fixtures, including the erection of fireproof partition walls, columns, etc. The defendant complied with this contract and the plaintiff made payments of $1,580. On September fourteenth the defendant entered on the plaintiff’s premises and. assumed dominion over the fixtures. There is no direct evidence to this effect, but it would appear that the plaintiff either abandoned the premises or lost control of them before that time. On the twenty-fourth day of September the defendant entered into an agreement with the landlord of the premises by which he agreed that for and in consideration of the sum of $800 “ I * * * do hereby sell, assign, transfer and set over unto * * * party of the second part his heirs and assigns all my right, title and interest in and to certain chattels, fixtures and appurtenances which I have
The defendant produced some testimony that thereafter, on November 10, 1915, the defendant herein had the fixtures sold at public auction and bought them in for the sum of $750. The evidence as to whether the plaintiff had received notice of this sale was controverted and the trial justice submitted to the jury only the question of whether such service was made. Both parties agreed that upon the coming in of this special verdict the trial justice should decide all other questions of law or fact. The jury decided that the plaintiff had received personal notice of this sale. The trial justice, however, decided that in spite of this fact the plaintiff was entitled, under section 65 of the Personal Property Law, to recover all the moneys paid by him on the contract. In his opinion he states1: “ Sale by private arrangement ten days after the retaking was premature and immediately subjected the vendor to liability to repay the instalments paid in by the" vendee under the contract. The form of a subsequent auction sale to another purchaser cannot avail the defendant.”
Under section 65 of the Personal Property Law wherever the vendor under a conditional contract of sale, or his successor in interest, retakes the articles sold “ they shall be retained for a period of thirty days from the time of such retaking, and during such period the vendee or his successor in interest may comply with the terms of such contract, and thereupon
There can be no question but that the contract in question, so far as it covers, the articles retaken, was a conditional contract of sale. It was, however, more than a conditional contract of sale; it covered “ restaurant fixtures and labor and materials as per specifications and plans attached to the contract.” The restaurant fixtures were chattels and under this contract they remained- chattels as between the parties. Moreover, they were apparently trade fixtures, and even, as against the landlord, they did not lose their character as chattels. The contract, however, included labor and material as per specifications and plans. This “labor and material ” was in a sense incidental to the sale of the chattels. They were furnished in order to prepare the premises to receive the fixtures, but they were labor and materials not applied to and incorporated into the chattels, but into the realty. Such labor and materials could not become the subject
The defendant, however, claims that, in view of the fact that the contract and the contract price covered also labor and materials which, by the express terms of the contract, are “ entirely lost and of no value ” if the articles are retaken, the parties had a right to waive in their contract the benefit of section 65 of the Personal Property Law. That contention seems to me unsound. The legislature, to prevent wrong and oppression, has given the vendee under the conditional contract of sale certain rights. The courts have uniformly held that the legislative purpose cannot be accomplished if the parties are permitted to make a contract of sale in which the vendee waives, in advance, the rights which the legislature has deemed necessary to provide for his protection. This protection should not be whittled away by exceptions to the general rule and a vendor should not have the power to obtain a waiver from the vendee merely because he has seen fit to include in one contract a conditional sale and an agreement to furnish labor and materials.
For this reason a new trial will be necessary, and I deem it proper to point out for the purposes of such
Judgment should, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.
Whitaker and Finch, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.