91 N.Y.S. 520 | N.Y. App. Div. | 1905
Lead Opinion
This is an appeal from an interlocutory judgment. overruling a demurrer to the complaint. • The allegations of that pleading are* in substance, that the plaintiffs had a lien on goods manufactured by the J. Freeman Brown Company; that it arose Out of an agreement between the plaintiffs and that company by which they contracted to make loans and advances to it, to be secured by a pledge of merchandise and the proceeds of the sale of such merchandise that the company was to keep with the plaintiffs a margin of at least ten per cent between the value of the merchandise and other securities pledged and the amount of its indebtedness at any time, to the plaintiffs; any depreciation in the value of the security to be instantly' made good; that it was also a part of the agreement (and! the regular course of dealing between the plaintiffs and the J. Freeman Brown Company) that the plaintiffs would authorize and permit the said J. Freeman .Brown Company to deliver from time to time to purchasers and customers of that company, merchandise pledged under the agreement with the plaintiffs, but the plaintiffs; consented to such deliveries and the relinquishment of their right to the possession of the merchandise om the sole condition that every purchaser from the J. Freeman Brown Company" receiving merchandise should be -given notice at or about the time of the receipt thereof, that the plaintiffs had an interest therein or lien • thereon, and that the money due therefor was payable only to the plaintiffs-
The. plaintiffs, then set forth in the complaint that at a time specified the. J, Freeman Brown Company was largely indebted to them in excess of --merchandise and other, securities and that there, was included in’ the-merchandise which had been pledged to them a quantity of cotton yarn and cloth which they, the plaintiffs, authorized and permitted the J. Freeman. Bro.wn Company to deliver to the.;defendant, according to the regular course of dealing between
The complaint states .a cause of action. It shows that the plaintiffs abandoned their lien by allowing the goods to be delivered. to the- defendants, who accepted them with notice and knowledge that the plaintiffs were entitled to the money to be paid therefor. The basis of the claim is an implied promise of the defendant to pay. It is not charged as an express promise, but all the facts are set forth from which a promise in law would be implied, for it is to be inferred from the allegation that the goods were accepted with, knowledge of the plaintiffs’ relation to them, and with knowledge-of the fact that the proceeds of the goods were to be paid to the plaintiffs. The plaintiffs are not entitled to the possession of the. goods, but under the allegations of the complaint they are entitled to the value of them or the amount for which they were sold by the J. Freeman Brown Company to the defendant. Implied contracts are such as reason and justice dictate, and which th’e law, therefore, presumes that every man undertakes to perform. (2 Black. Com. 443.)
The interlocutory judgment should be affirmed, with costs, with leave to the defendant to withdraw demurrer and to answer within twenty days on payment of costs in this court and in the court below.
Van Brunt, P. J., and Laughlin, J., concurred; Ingraham and McLaughlin, JJ., dissented.
Dissenting Opinion
(dissenting): I do not concur with Mr. Justice Patterson. This, cause, of action is based'upon an allegation that by an agreement between the plaintiffs and the J. Freeman Brown Company the plaintiffs made loans and advances to the corporation, to be secured by the hypothecation and pledge of certain merchandise and the proceeds of the sale thereof, the corporation agreeing to keep and maintain a margin of at least ten per cent between the value of the merchandise and other securities hypothecated and pledged by it and the
The plaintiffs rely upon McLachlin v. Brett (105 N. Y. 391); but in that case the merchandise, to recover the value of which the ^action was brought, never belonged to Hall & Co., who had shipped •the goods to the defendants, and notice was given to the defendants before they received the goods that Hall & Co. were not the owners •of the goods that they were shipping to the defendants in pursuance of .a contract which they had made for the sale of goods of a like character.
Here the goods belonged to the corporation that delivered them to the defendant, but the terms upon which these goods were delivered ,are not set forth. Whether the corporation sold the goods to the defendant, or delivered them for safekeeping is not disclosed, the •agreement between the corporation and the plaintiffs being that the plaintiffs would be entitled to. the moneys realized upon the sale of the goods. There is nothing, however, to show that notice of this agreement was given to the defendant. I do not think that the mere fact that the defendant had notice that the plaintiffs had :a lien upon the goods raised an implied promise of the defendant to pay the plaintiffs the value of the goods delivered when they were delivered to the defendant with the express assent of the plaintiffs. Whatever lien the plaintiffs had upon the goods was lost by a delivery of the goods to the defendant with the consent of the plaintiffs, and there is no allegation that the defendant was notified of any agreement between the corporation and the plaintiffs by which the amount that the defendant was to pay for the goods was to be payable to the plaintiffs.
I think, therefore, that the demurrer should have been sustained.
Dissenting Opinion
(dissenting): I concur in the opinion of Mr. Justice Ingraham in so far as he bolds that the complaint does not state facts- sufficient to constitute a
The demurrer should have been sustained.
Judgment affirmed, with costs, with leave .to defendant to withdraw demurrer and to answer on payment of costs in this court and -in the court below. ,
