Goodman v. Cohen — 29 N.Y. St. Rep. 716

Majority

p. 716

Israel D. Goodman, Resp’t, v. Jacob Cohen, App’lt.

(New York Common Pleas, General Term,

Filed February 10, 1890.)

Headnote

Contract—Statute of frauds.

Defendant, who was a dealer in damaged goods, agreed to purchase $500 worth of plaintiff’s goods which had been damaged by fire, and to pay therefor to the insurance companies, which were to pay the same to plaintiff in addition to the damages fixed by defendant as appraiser; he also agreed that if either of the companies failed he would pay its share directly to plaintiff. Eeld, that defendant’s engagement was not to answer for the debt, default or miscarriage of any of the companies, but was simply a mode of payment for the goods purchased, and that the contract was not .. void under the statute of frauds.

Appeal from judgment in favor of plaintiff and from order denying motion for a new trial on the minutes.

■ This action was brought to recover the sum of $105.26, a balance due from defendant on a sale and delivery of merchandise to him by plaintiff.

The transaction out of which this litigation arose is as follows:

The plaintiff was owner of certain goods which were damaged by fire.

. The property was insured in four companies.

The conrpanies appointed the defendant to act as appraiser, to fix the amount of damage in conjunction with one Sunshine, appointed by the plaintiff, the insured.

The appraisers could not agree, and in order to hasten and complete the matter the defendant, who is engaged in business on his own account as an “Insurance Wrecker” (dealer in damaged property), agreed to purchase from plaintiff $500 worth of property, and the payment therefor was to be made by defendant as follows:

$131.58 he to was to pay by his check to Mercnant’s Insurance Company. 157.90 to Hamburg & Bremen Insurance Company. 105.26 to the Insurance Company of Dakota. 105.26 to the Citizens’ Insurance Company of Mobile. $500.00

The companies m turn were to pay plaintiff the amount of $1,100.00 damages, in addition to the sums paid by defendant for the goods he purchased.

As a condition of sale it was agreed between plaintiff and defendant, in the event of any of the four companies having failed, gone in liquidation, or out of business, the defendant was to make no payment to such company, but to give the amount he fixed, to pay it, to this plaintiff personally.

The Citizen’s Insurance Company of Mobile, Alabama, failed.

p. 717

The defendant did not pay the money to it, and to recover that amount plaintiff brought this action.

Benno Loewy, for app’lt; H. Joseph, for resp’t

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 the 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 the debt, default or miscarriage 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 Citizen’s 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 had 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.

Bookstaver and Bischoff, JJ., concur.