Compton v. Mellis — 46 N.Y. St. Rep. 563

Majority

p. 563

Oscar Compton, Resp’t, v. Norman T. M. Mellis, App’lt.

(City Court of New York, General Term,

Filed July 1, 1892.)

Headnote

1. Assignment for creditors—Corporation cannot make.

A corporation has no right to and cannot make a general assignment of its property for the benefit of its creditors. Ij¡ can only terminate its life by the usual dissolution proceedings, in which a receiver will be appointed.

2. Contract—Statute of frauds.

Plaintiff sold a cargo of coal to a corporation, which the day after delivery made a general assignment to defendant. On plaintiff threatening to replevin the coal, defendant agreed orally to personally purchase the coal. Held, that defendant had the right, with the consent of the corporation, to purchase the coal from plaintiff, and the contract was an original one and not within the statute of frauds because not in writing.

Appeal from judgment in favor of plaintiff.

Hyland & Zabriskie, for resp’t; Guy Richards, for app’lt.

It appears that in October or November, 1884, the plaintiff sold to the Carr & Hobson Co., a corporation, a cargo of coal, consisting of 231 tons, which were delivered on November 14, 1884.

On November 15,1884, said corporation made a general assignment for the benefit of creditors and appointed the defendant assignee.

On November 17, 1884, the plaintiff claims that he had a conversation with the defendant in the presence of Mr. Carr, the president of said corporation; said that he was about to bring a replevin action to recover said cargo of coal.

That defendant requested him to wait, and subsequently had several conversations of like tenure with defendant, and that finally in December, 1884, said that he would personally purchase-said coal for $4.35 per ton, and fixed the quantity at 226 tons.

The jury rendered a verdict for plaintiff for $1,402.23.

p. 564

1st. The defendant contends upon this appeal that the goods having been sold to the Carr & Hobson Co., the defendant’s promise to pay for the same was void because it was not in writing.

2d. He also contends that even if the goods were sold to him "that this action must fail because not brought, against him in his ■ capacity as assignee.

The questions which we deem unimportant are presented for consideration. '

The Carr & Hobson Co., being a corporation, had no right to .and it could not make a general assignment of its property for the ■benefit of its creditors.

It could only terminate its life by the usual dissolution proceedings, in which a receiver would have been appointed, and until such proceedings were taken the said corporation had a legal ■existence.

Therefore, on the 17th day of November, when plaintiff had the conversation, the defendant had the right, with the consent of the Carr & Hobson Co., to purchase from the plaintiff the coal in ■question, and having done so in December, the contract between plaintiff and defendant was an original act and the usual contract .for the sale and delivery of chattels.

This being so, the action was properly brought against the defendant personally.

This ruling we think disposes of all the. material questions raised by the appellant.

Finding no errors, the judgment must be affirmed, with costs.

McGown, J., concurs.