Brand v. Focht — 26 N.Y. Super. Ct. 426

Majority

p. 426

Christian Brand, plaintiff and appellant, vs. Hiram Focht et al. defendants and respondents.

Headnote

A parol agreement for the sale of goods, of the value of fifty dollars or more, deliverable at a future day, of which no memorandum in writing has been made, no portion of the purchase money has been paid, and no part of the goods accepted and received by the buyer, at the time, is void by the statute of frauds. The fact that the purchaser, to whom the goods are consigned, subsequent to the making of the contract, accidentally obtains possession of a bill of lading of them on their shipment, but refuses to pay the amount demanded by it, and retains the same without the assent of the vendor, will not take the case out of the statute.

(Before Moncrief, Monell and McCunn, JJ.)

Heard Decem5er 15, 1865;

decided December 30, 1865.

Appeal, from a judgment of dismissal.

The following history of the case was submitted on behalf .of the appellant. This case was tried before Judge McCunn, and upon the close of the plaintiff’s case, a motion was made by the defendants’ counsel to dismiss the complaint, on the ground that the contract alleged by the plaintiff came within the provisions of the statute of frauds, and was, for that reason, void. The motion was granted, and an exception taken to the ruling of the judge. Judgment having been entered, the plaintiff appealed.

The action was replevin, and was brought by the plaintiff, to recover one hundred and seventy-two tons of coal, which were laden on board the barge Ocean Star, lying at one of the piers on the North River, near Hammersley street. The plaintiff did not obtain the possession of the coal under his proceedings, the defendants having interposed a claim of property, and given an undertaking, under the provisions of the Code, for the delivering of the property to the plaintiff, and the payment of such sum as might be recovered in the action against the defendants. The plaintiff’s counsel offered to read in evidence this undertaking, for the purpose of showing that, according to the representation of the defendants themselves, the property

p. 427

in controversy belonged to them. This offer was objected to by the defendants’ counsel. The court sustained the objection, and refused to permit the undertaking to be read in evidence. An exception was taken to this ruling, which is one of the points in controversy here.

It was proved by the evidence of Christian Brand, the plaintiff, that he made a contract in the month of March, 1863, with Hiram Focht, to purchase from him a boat load of coal. The price agreed upon, between them, was six dollars a ton, and it was to be delivered in from twelve days to two weeks. This agreement was not in writing, but by parol. On the 8th of May, 1863, the coal was brought to New York in the barge Ocean Star, consigned to the plaintiff, and the bill of lading was carried by the clerk of Focht to the plaintiff, and handed to him. The bill for the coal, which was delivered to the plaintiff, called for six dollars and fifty cents' a ton instead of six dollars a ton, the contract price. The plaintiff refused to pay the additional price, but kept the bill of lading which consigned the property to him. He subsequently went to the barge to obtain possession of the coal, but Focht refused to deliver it to him or to his order, and, for that reason, the present suit was instituted.

A. H. Reavey, for the appellant.

D. Hawley, for the respondents.

The complaint was properly dismissed. The appellant concedes, in his first point, that there was no memorandum in writing, and that no portion of the (so called) purchase money was paid to the defendant at the time of making the alleged contract; and he also concedes that the amount to be paid under the parol agreement exceeded the sum of fifty dollars. Such an arrangement clearly was void, under the statute of frauds, unless the plaintiff (the buyer) “ shall accept and receive part of such goods, or the evidences, or some of them, of such things in action.” No part of the

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goods were delivered to the plaintiff, and of course none was accepted and received by him. The plaintiff claims, however, that having come into possession of the bill of lading for the coal, the parol contract is relieved of its vice or defect. In this he is in error ; he did not accept or receive that evidence of title at the same time, nor was it part of the same transaction. The parol agreement was for $6 a ton, and was made in March, 1863; the bill,' or invoice, pinned to the bill of lading, is dated April 27, 1863, and claims $6.50 per ton. Besides this, the possession of the bill of lading, by the plaintiff, without the assent of the defendants, and in view of his refusal to accept it upon the terms'demanded (a higher rate per tori than was stated in the parol contract,) if not tortious, conveyed no rights or benefit upon him. The keeping, by the plaintiff, of the bill of lading, without the- consent of Mr. Focht, plainly would not take the case out of the statute of frauds, no more than if it had come into his possession feloniously, or by finding. Again, even if the bill of lading could be used to assist in taking the parol agreement out of the statute, the bill, or invoice, attached to and forming part of the alleged contract, the “ aggregatio mentium” is wanting to perfect it. The plaintiff/ refusing, to pay the amount claimed by the invoice, the agent of the defendants demanded the return of the bill of lading.

There was no error in excluding the undertaking given on behalf of the defendants. It is not suggested what evidence it contained tending to establish his cause of action. As we find no error in the rulings made at the trial, the judgment will be affirmed.