178 A.D. 196 | N.Y. App. Div. | 1917
This appeal is from an order of the Special Term granting the plaintiff’s motion to permit the taking of samples from each of thirty barrels of Hematine paste — a logwood extract — sold and delivered by plaintiff upon sample. The sole question presented is whether the Hematine paste contained in the thirty barrels delivered and in defendant’s possession is equal in quality to the sample given it at the time the contract of sale was entered into, and upon which such sale was based. During the trial of this issue the parties entered into an oral agreement in open court, which the court, after pointing out that the point in dispute was “ whether the goods sold, to wit: a number of barrels of hematine paste was equal to the sample,” states as follows: “ An agreement was made in open Court whereby each side was to select an expert chemist for the purpose of examining the product and the result of such examination was to be submitted to
The appellant expressly concedes that the agreement made by the parties in open court was as stated by the learned justice, and the respondent does not materially differ therefrom. The agreement entered into in open court with the consent and approval of the presiding justice, is binding upon the parties and concluded the court, whose duty it was, as between the parties, to enforce and effectuate it. (Matter of New York, L. & W. R. R. Co., 98 N. Y. 447, 453, and cited cases; Dubuc v. Lazell, Dalley & Co., 182 id. 482, 486; Matter of Clark, 168 id. 427; Potter v. Rossiter, No. 4 109 App. Div. 737, 739; Chichester v. Winton Motor Carriage Co., 110 id. 78, 80.) Greve v. ÆtnaLive Stock Ins. Co. (81 Hun, 28) is not in conflict with the rule declared in the cited cases. (Sanford v. Commercial Travelers’ Assn., 86 Hun, 380, 382.) Such agreement, being undisputed and proper, .may be summarily enforced by motion. (Potter v. Rossiter, No. 4, supra, 737.) Although oral, such agreement is just as obligatory, conclusive and enforcible as though it had been reduced to writing and executed with every legal formality. (Matter of Baldwin, 27 App. Div. 506, 509, and cited cases; Smith v. Barnes, 9 Misc. Rep. 368, 370.) But the agreement enforced must be, in all its material details, that which the parties entered into, the court being without power or authority to modify, alter or change the same (in any material detail) against the objection of one of the parties. The agreement disposed of the action absolutely. There was nothing further to litigate. As the court says: "if the article in dispute [the Hematine paste in the barrels] did not measure up to the sample the defendant would not be called upon to accept or pay for the goods, but, on the other hand, if it did prove equal to the sample then plaintiff would be entitled to their money.” It seems to me, however, that the order is objectionable, as not conforming to the agreement made by the parties, and is not specific enough to fully guard and protect the rights of the parties under their agreement; first, it does not obligate the parties to accept as final the result of the test of the two experts if they agree, or make the report of a
The order is modified, first, by striking out the words “ after properly preparing the same for testing,” and inserting in lieu thereof the specific method and manner in which the contents of each barrel of the Hematine paste shall be prepared for testing (before samples are taken therefrom) to produce a complete, correct and uniform sample of the entire mixture contained therein; second, a provision that the samples shall be taken from each and every barrel, upon notice to the parties, at the same time and in the presence of the two selected experts of the parties, and representatives of the parties, if they attend at the time and place specified in such notice; third, a provision designating the person or corporation with whom the third sealed samples shall be deposited during the time the selected experts of the parties are making their tests, and the manner and time within which such sealed samples shall be delivered to the third expert, should one be appointed; fourth, a provision that should the tests made by the two selected experts not agree and they are unable within a time stated to agree upon the third expert, such
Jenks, P. J., Thomas, Mills and Putnam, JJ., concurred.
Order modified in accordance with opinion, and as modified affirmed, without costs. Order to be settled on notice.