2 Keyes 519 | NY | 1866
The flour in question was purchased by Patterson the fifth of May, on which day the bought and sold notes were delivered by the broker, McKean, to plaintiffs and to Patterson. On the ninth of May the defendants made advance to Patterson of seven dollars per barrel thereon, in the faith that it was his flour. It had been sold by plaintiff at $7.93f per barrel to Patterson. On the eleventh of May, the flour having been delivered on board the vessels for Liverpool, the plaintiffs delivered the ships’ receipts therefor to McKean, as they were conditionally to be returned if he failed to get the money thereon from defendants. These were delivered by Patterson to the defendant on the twelfth, who then advanced to him six thousand six hundred fifty-one iVo dollars, but on account of other flour. On the thirteenth or fourteenth, the vessels, containing the flour, sailed for Liverpool.
On Tuesday, the sixteenth of May, for the first time, Wilmot called on defendants as to this flour. On the thirteenth they had received of Patterson five thousand dollars upon.it.
It is entirely clear from the conceded facts that the defendants acted in entire good faith in the whole transaction. There is not a fact at war with this view. The same may be said of the plaintiffs. It is a question of' mere law as to the rights of the parties.
The plaintiffs insist here that they are entitled to recover the proceeds of the flour to the extent of their claim against Patterson for the balance of the purchase-money, as money had and received by the defendants to the plaintiffs’ use. That the title to the flour vested in Patterson by the bought and sold notes before delivery of the ships’ receipts and certainly by the delivery of the flour on the ships. That they still had a lien for the purchase-money which they never waived, and the flour having been sold by defendants, their action for money had and received lies against defendants. See Terry v. Wheeler, 25 N. Y., 520;
When the whole facts were known to the plaintiffs, that the ships had sailed with the flour and they were unpaid in about ten thousand dollars, it may be they had a right to affirm the sale and prosecute for the price, or they might have rescinded the sale and looked to the flour; notified the defendants that they claimed the flour, and wholly disaffirmed the sale.
There may have been considerable question whether they could, under the circumstances, disaffirm the sale. There is none whatever as to their authority and power to ratify it. They could not do both.-
On the twentieth of May, three days after Wilmot’s interview with the defendants and Patterson, the plaintiffs commenced a suit against Patterson for this demand for goods sold and delivered. They obtained an attachment upon an affidavit of the plaintiff Wflmot, in which he swears that Patterson is indebted to the plaintiffs in over ten thousand dollars for this flour, sold and delivered to him on the twelfth of May. There is not one word of qualification or explanation of that suit or of that affidavit.
Was not the sale and the delivery, then, fully ratified by that suit? I think it was. Morris v. Rexford, 18 N. Y., 552.
This, it will be observed, was directly after the whole matter was consummated. Whether the delivery was qualified or absolute; whether the sale was fraudulent or fair, the plaintiffs, by this affidavit and proceeding elected to hold it by an action, a consummated sale, an actual, absolute delivery.
The ships’ receipts had been handed over by plaintiffs on the twelfth of May, and on the thirteenth, Patterson paid them on the flour, five thousand dollars ($5,000).
Again, the plaintiffs deny that they received the order in their favor upon the defendants, drawn by Patterson, and declare they refused to receive it.
How can the declaration of Wilmot, that he positively refused to receive or have anything to do with that order, •made on or before the eighteenth of May, qualify his plain affirmative acts thereafter. He did, in fact, have something to do with the order. He received and retained the letter of acceptance thereof. He received, on two different occasions in September, the money due thereon, and he receipted that money as received thereon.
The declarations, if made as claimed, were entirely idle and immaterial, in view of his subsequent conduct. The plaintiffs did, in fact, receive the order and its payment to the whole amount of the funds applicable thereto.
By this order in the plaintiffs’ favor, the proceeds, in part, of this same flour, were appropriated to the plaintiffs. They thus, in substance, averred or sanctioned its sale in Liverpool by the defendants and ratified the sale to Patterson. Bank of Beloit v. Beal, decided last term of this court, not reported; Palmerton v. Huxford, 4 Denio, 166; Mosson v. Bover, 1 id., 69.
There was in the evidence touching this ratification no disputed question of fact, for ¡the jury. Had the jury found against the ratification—against the plaintiffs’ election to consider this a sale of the flour to Patterson, it would have been the clear duty of the court to set that verdict aside.
In such a case as a general rule the court may properly nonsuit the plaintiffs.
The theory of the plaintiffs’ counsel that the plaintiffs had the right to sue for goods bargained and sold to Patterson, though not delivered, that they might waive the tort of the fraudulent purchase, and thus, without
Several exceptions were taken in the course of the trial to the decisions of the court in rejecting evidence offered by the plaintiffs.
As a general rule conversations between third parties are inadmissible. Yet there are many exceptions to the rule; conversations are frequently part of the transaction. They are then acts. If the plaintiffs had desired to prove any conversation as an act, or in other words to prove an act by a conversation, he should have called the attention of the court to the exception to the general rule, to the act sought to be proved. Here the court stated that it would, receive any evidence of acts, not of conversations.
The conversation admissible of third parties is an act.
There is, however, another answer to all the rejected evidence. Had it been admitted, it could not have changed the legal aspect of the case. It all occurred prior to the receipt of the letter of acceptance of the defendants by the plaintiffs, of the order in the plaintiffs’ favor.
The judgment should be affirmed.
Judgment affirmed.
