Dutton v. Gale Manufacturing Co. — 4 N.Y. St. Rep. 410

Majority

p. 410

John A. Dutton, as assignee, etc., of Walter M. Harris, App’lt, v. The Gale Manufacturing Company, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed January, 1887.)

Headnote

Contract—Continuance of relations created by, beyond period THEREIN FIXED—WHEN PRESUMED.

This action is for alleged conversion of plows, etc., to which plaintiff claims title as assignee for the benefit of the creditors of one H. In February, 1883, "defendant made a written contract with H. to furnish him plows, etc., etc., at prices agreed to be paid by him; for a portion of which he should give defendant his note, the title to the property to remain in defendant until paid for, and the contract not to be binding and in force longer than January 1," 1884. Under this contract goods were furnished H. in 18tí3, and without further contract defendant furnished him goods in 1884, upon his order, and H. in like manner gave defendant his notes, some of which remained unpaid when he made his general assignment to plaintiff. The property for which they were given was included in his schedule of property filed. Defendant thereafter took possession of it, and on refusal to redeliver it to the plaintiff, this action was brought. Held, that the terms of the contract of 1883 not being such as to preclude the presumption that they intended to continue upon the same terms as those they had initiated by their wiitten contract, the presumption was that they did so proceed after the expiration of the period defined by it for its operation, until something appeared to the contrary: that, consequently, the title to the articles sold in in 1884 remained in defendant.

Appeal by the plaintiff from judgment entered on report of referee. The action is for alleged conversion by the defendant of plows, castings, etc., to which the plaintiff claims title as assignee for the benefit of the creditors of one Harris.

It appears that in February, 1883, the defendant made a contract in writing with Harris, to furnish him plows, and some other things, to be used in connection with them, at stipulated prices "to be paid by him; for a portion of which, he should give the defendant his notes. And the title to property to remain in the defendant until paid for. And “the contract not to be binding and in force longer than January 1,1884. Under this contract goods were furnished to Harris, in 1883. And in 1884, the defendant furnished to him goods upon his order, without any further,agreement made between them; and Harris in like manner gave the defendant his notes. Some of the notes made by Harris, in

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1884, for goods furnished Mm that year remained unpaid when he made Ms general assignment for the benefit of Ms creditors to the plaintiff, on April 10, 1885. The property in question was included in Ms schedule filed of property assigned. And the defendant thereafter took the possession of it, and on refusal to redeliver it to the plaintiff, this action was brought.

The referee found and determined that the defendant had title to all the property, except three plows furnished to Harris, in 1883, which had been paid for, of the value of $26.85, and directed judgment for the defendant for costs, less that amount to be deducted from them.

The plaintiff appealed.

A. P. Rich, for appl’t; J. S. Qarlock and W, H. Beach, for resp’t.

The main question is whether the terms of the contract made between Harris and the defendant, of February 10, 1883, were applicable to the transactions between them, after the expiration of the term expressed in it, so as to govern their rights of property in the goods, in question, which were furnished and delivered by the defendant to him in 1884, and not paid for. The contention on the part of the plaintiff is, that by its terms the written contract ceased to be operative' on the first of January, 1884, and that its provisions could not be continued beyond that prescribed period without an express agreement or understanding to that effect, and that when goods were thereafter furmshed and delivered by the defendant to Harris, upon his order without qualification, and his notes taken for them, the title passed to him which was taken by his assignee.

The property was furmshed to and obtained by Harris to sell within certain limits prescribed by the contract, within which his right to sell was granted by the defendant. And if it may be assumed that the right of Harris to sell the plows depended upon the grant in the contract referred to, Ms sales in 1884, were without right, unless afforded by the continuance of such grant. It does not appear that further arrangement was expressly made between the parties to it, or that he sought to sell in any other than the prescribed territory.

A relation with a view to the supply on certain terms of property, by one party for the purpose of sale by another was formed by their contract for a limited period only, and notwithstanding its expiration they continued to proceed in like manner and apparently with a view to the same purpose. The question arises whether there is opportunity to infer any intention common to the parties, or whether there

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is any implied understanding which the the law will apply in such a case.

, The terms of the contract of 1883, are not such as to preclude the presumption'that they intended to continue upon the same terms as those they had initiated by their written contract. And the implication or presumption is, that they did so proceed after the expiration of the period defined by it for its operation, until something appears to the contrary. Vail v. Jersey L. F. M. Co., 32 Barb., 564 ; Huntington v. Claflin, 38 N. Y., 182 ; Ross v. Hardin, 79 id., 84; Wallace v. Floyd, 29 Penn. St., 184 ; Rauck v. Albright, 36 id., 361.

The evidence permitted the inference to that effect and fairly supported the conclusion of the referee in that respect, that-the terms of'the contract of February, 1883, between the defendant and Harris, were carried into their transactions of 1884. And that their rights must be determined accordingly. This view requires the conclusion that the title to that portion of the plows, etc., in question, delivered in 1884, was in the defendant, and substantially disposes of all the exceptions taken upon the trial, and to-the conclusions of the referee, and to his refusals to find.

The judgment should be affirmed.

Haight and Angle, JJ., concur/