Talcott v. Brouner

Headnote

Blection of remedies—action ip vendor against assignee of vendee to replevy goods sold—effect of compromise therein—when not iar to recovery of purchase price. ,

Appeal from a judgment against the defendants for $5,089.94, entered upon a verdict directed by the court, and from an order denying the defendants’ motion for a new trial upon the minutes.

The action is brought to recover $2,907.17 for goods sold and delivered. The answer admits the sale and alleges the goods were paid for by defendants’ notes ; that the defendants failed in • business just before the notes fell due and made a general assignment to one Belding; that plaintiff rescinded the sale by bringing replevin for the goods against the defendants’ assignee ; that on the trial the notes were surrendered to the assignee and a judgment obtained against him, which was reversed on appeal; and that the plaintiff thereupon settled with the assignee and received from him a sum of money in full satisfaction for the goods. The plaintiff testified at the trial, that he had “ never received a dollar from the whole goods;” that the notes had never been paid, and “ that the goods sold had never been paid for.” The bringing of the suit in replevin by the plaintiff against the assignee, and the final judgment against the plaintiff therein, were shown at the trial of the present action.

The court, at General Term, said: “ There having been a legal adjudication by the appellate court, adverse to the plaintiff, he was remitted to such remedy as he might have against other parties than the assignee (Kinney v. Kiernan, 49 N. Y. 169 ). If he was mistaken as to his having a cause of action against the latter, it does not follow that he did not have one against the present defendants. The defendants offered to show a compromise and settlement by the assignee of the plaintiff’s claim for the identical goods in suit

after the reversal of the judgment by the general term. This was excluded by the court, and the defendants excepted. The offer was vague and immaterial. The assignee, as trustee, had no legal right to divert from their proper use and application the assignee’s, assets to the payment or settlement of a claim adj udged untenable as against him ; nor would the settlement of an invalid demand against the assignee conclude the plaintiff from asserting a valid claim against the defendants.”