Goodman v. Cohen — 16 Daly (N.Y.) 47

Majority

p. 47

Israel D. Goodman, Respondent, against Jacob Cohen, Appellant.

(Decided February 10th, 1890.)

Headnote

Pending negotiations between plaintiff and insurance companies for the adjustment and payment of a loss by damage to plaintiff’s goods by fire, defendant, an “insurance wrecker,” orally contracted to purchase damaged goods of plaintiff, for a certain sum, which he agreed to pay to the various insurance companies in certain proportions, they to pay the same to plaintiff with an additional sum as damages. Held, that such contract was not within the statute of frauds, as an agreement to answer for the debt, default, or miscarriage of another.

p. 48

Appeal from a judgment of this court entered upon the verdict of a jury and from an order denying a motion for a new trial.

Plaintiff suffered a loss by fire on a stock of goods which were insured by several insurance companies. Pending negotiations for an appraisal and settlement by the insurance companies, defendant, an “ insurance wrecker,” or dealer in damaged goods, who was also appointed to appraise the loss, agreed, as alleged by plaintiff, in order to hasten the matter, to purchase of plaintiff $500 worth of the goods, payment to be made to the various insurance companies in certain amounts to each, but in case any of such companies were insolvent or had gone out of business, the amount to be paid to it was to be paid directly to plaintiff. The payments were made under the agreement, save as to the sum which was to be paid to the Citizens Insurance Company of Mobile, which was insolvent, and to recover such payment plaintiff brought this action. The jury found a verdict for plaintiff, and a motion by defendant for a new trial was denied. From the judgment for -plaintiff entered on the verdict, and from the order denying his motion for a new trial, defendant appeals.

Benno Loewy, for’appellant.

B. Joseph, for respondent.

The contract alleged by plaintiff is certainly an unusual one. Nevertheless, the- jury have found by the verdict that such contract was actually entered into, and the submission of the question of fact to them by the trial judge in his charge was free from error, and eminently fair. This contract, which plaintiff succeeded in establishing, was not void under the statute of frauds. It was for a sale of the damaged goods to defendant,'he agreeing to pay the price through the different insurance companies, instead of to defendant directly. The engagement on defendant’s part, therefore, was not to answer for the debt, default, or mis

p. 49

carriage of any of the insurance companies, but related simply to the mode of payment for the goods he had purchased. As to the portion of such sum which was to reach plaintiff through the conduit of the Citizens Insurance Company of Mobile, the clause of the contract providing .that in case of the insolvency of any company its proportion should be paid directly to plaintiff applied, and this action is maintainable for such amount, which it does not appear defendant has paid out at all.

Upon plaintiff’s theory of the transaction, which the jury have accepted, the obvious consideration for the contract moving from plaintiff was the parting with title in the merchandise in question. The verdict is not against the weight of evidence so as to induce us to interfere with it. The sale was a peculiar one, but, on the other hand, we would not feel called upon to say that defendant was not induced to enter into such an arrangement in order to adjust and terminate a tedious negotiation.

The judgment and order appealed from should be affirmed, with costs.

Bookstaybe and Bischoeb, JJ., concurred,

Judgment affirmed, with costs.