Sheldon v. Parker — 10 N.Y. Sup. Ct. 498

Majority

p. 498

ALBERT B. SHELDON, Appellant, v. JOHN L. PARKER, Respondent.

Headnote

Oonlñ'aet for sale of note—title to— when passes.

. This action was brought upon a promissory note transferred to the plaintiff by the payee. Prior to the time of the transfer to the plaintiff, the payee had agreed, in writing, to sell the note to one Parks, of which agreement plaintiff was aware at the time he purchased the note. Held, that he was not entitled to recover; that by the agreement entered into with Parks, the title to the note 1 was vested in him, and that the payee had no interest remaining therein to transfer to the plaintiff.

Appeal from a judgment of the County Court, in favor of the defendant, entered upon the trial of this action by the court without a jury.

p. 499

This action was brought to recover the amount of a promissory note. It was commenced in a Justice Court, where a judgment was rendered in favor of the plaintiff, for ninety-two dollars damages and costs, from which an appeal was duly taken to the County Court, where the cause was retried by the court without a jury. The note was given for eighty-seven dollars, dated December 1st, 1871, and was payable to Samuel F. Hawley or order, four months from date, and was duly transferred by Hawley to the plaintiff, for a valuable consideration, before maturity.

The judge who tried the cause found that, on the 22d day of March, 1871, and before the maturity of said note, the payee agreed in writing to sell and-assign said note to Hiram Parker, and the said Hiram Parker agreed to purchase the same, for fifty cents on the dollar. That before and at the time of the indorsement and delivery of said note to the plaintiff, the said plaintiff well knew of the agreement for the sale and transfer of said note by said Hawley to the said Hiram Parker. The judge held that said plaintiff was not a bona fide holder of the note, and the indorsement and delivery to him passed no title; that the title to said note passed to said Parker upon the execution of the agreement of Hawley to sell the same to him, and that such agreement operated as a present sale of said note. He dismissed the complaint and directed judgment for the deféndant accordingly, which was duly perfected, and the plaintiff thereupon appealed to this court.

Levi Brown, for the appellant.

L. B. Sessions, for the respondent.

The judgment rendered by the county judge, we think, was not erroneous. The contract of sale of said note to Hiram Parker was complete — was in writing, and binding upon the parties, and not affected by the statute of frauds.

It is quite clear, by the laws of England, that the sale of a specific chattel passes the property therein to the vendee without delivery.^[2]

p. 500

In Gilman v. Supple,^[2] Sir Creswell Creswell, in giving the opinion of the court, said that, “ by the laws of England, by a contract for the sale of specific, ascertained goods, the property immediately vests in the buyer, and a right to the price in the seller, unless it can be shown that such was not the intention of the parties.”

By the statute of frauds, a contract for the sale of goods and chattels exceeding fifty dollars, valid at common law, is declared invalid, without delivery and acceptance, or payment of the whole or some part of the purchase-money, unless it is in writing,^[3] In this case, the contract was for the sale of a specific article; nothing was to be done to perfect it before delivery. The vendor was entitled do the price, and the vendee to the delivery of the note. It was a case of perfect bargain and sale at common law, and the title passed to the vendee. The plaintiff, as held by the judge, acquired no title to the note. Hawley had no title to it to sell, and ‘the plaintiff, having full knowledge of the facts, could acquire none

The judgment was correct, and should be affirmed.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed.

* 2 Moore’s Privy Council Cases, 556.

† † Shindler v. Houston, 2 Comstock, 261.

Footnotes

* 1 Chitty on Contracts, 11, American ed., 518; 2 Story on Contracts, § 1018; Benjamin on Sales (Book 2), chap. 1, p. 226 (2d ed.).