Scott v. Pentz — 7 N.Y. Super. Ct. 572

Majority

p. 572

Peter Scott v. George W. Pentz.

Headnote

When upon the trial of a cause, it is doubtful upon the evidence, whether a written contract for the sale of goods, signed by the vendor, and delivered to the purchaser, was delivered absolutely or conditionally, the question, as a question of fact, must be submitted to the jury. When a condition outside of the contract is annexed to its delivery, the purchaser must be allowed a reasonable time for its performance, and if within that time he tenders a performance, the agreement becomes absolute.

When a part of such a written contract is torn off by violence, by a party who had signed and delivered it, he is presumed to have destroyed it, and parole evidence of its contents may therefore be given without notice to produce it.

New trial granted with costs to abide the event.

(Before Sandfokd, Ddek, and Bosworth.)

April 20;

May 29, 1852.

This was an appeal from a judgment at a special term, and a motion for a reversal, and a new trial, was now made, founded upon a bill of exceptions.

p. 573

The action was for the "breach of a contract, by which the defendant held and agreed to deliver to the plaintiff, at a certain price to be paid on delivery, 200 salted hides.

The defendant, in his answer,- alleged that no written contract had been delivered, and that the agreement, if any had been made, was rescinded.

The proceedings on the trial appear in the bill of exceptions, which is as follows ■:—

Afterwards, that is to say, on the 24th day of December, A. D. 1851, the said action came on to be tried before the Honorable Judge Mason, one of the judges of the said court, and a jury, whereupon the plaintiff, to maintain and prove the said issues on his part, called to the stand Michael O’Connor, who being duly sworn, testified :

That he knows plaintiff and defendant; was present at a transaction between them on the third day of July last; it took place at the office of the defendant Pentz, in South street; accompanied plaintiff Scott to the office. Witness on behalf of Mr. Scott, asked defendant what he would take per pound for 200 dry salted hides which he had to dispose of. Defendant asked cents per pound, cash. After some conversation, he agreed to sell them at 6 cents per pound, which Mr. Scott accepted, or which witness accepted on his behalf. Witness suggested that a memorandum of sale should be made. After conversation with some third party in the office, Pentz consented ; a memorandum was made, signed by Scott, and handed to Pentz ; Pentz having examined the memorandum, passed it to a young man in the office, and requested him to make a copy of it; this being done, the copy was passed to Pentz for his signature; Pentz signed it, and gave it to Scott, and remarked that as he did not know Scott or witness, he should require to have a deposit for amount of hides ; witness said that though they were willing to give a deposit, a reference might do as well, and named Denniston & Wood, bankers, Wall street, as Reference ; Pentz said that would do, or in substance, that the reference was satisfactory : witness and Scott were about to depart, when witness suggested, to obviate trouble of calling upon the said parties referred to, Denniston & Wood, that as he had some fifty or sixty dollars about him, he would give it to

p. 574

Pentz. On making this offer to Pentz, he said he would require $400 as a deposit; witness tried to reason him into the belief that that was an unbusinesslike request, inasmuch as the entire amount was not so much ; as Pentz on reference to his invoices or correspondent’s advices had found that the gross weight of the hides averaged about 30 pounds each ; witness judged from that fact that the hides would not amount to $400, and tried to reason him, Pentz, into the belief that it was inconsistent to demand $400 ; Pentz became suddenly obstinate, and seemed not to be pleased with anything else than $400 as a deposit; witness then said that as nothing else would please him, (Pentz,) he would go and bring $400 on behalf of Scott, and told Scott to remain while witness was doing so ; just as witness said that, Pentz attempted to take the memorandum out of his (witness’s) hands, saying, “ leave this witness resisted this, and in Pentz’s attempting to take the contract, and witness’s resistance, the contract was torn ; it was not all torn ; witness remonstrated with Pentz on the impropriety of such a proceeding, and told him his conduct was not gentlemanly, but said nothing to give offence ; Pentz then replied in substance, that he did not desire to follow up the contract; witness went away and returned with the $400, which he offered to Pentz.

Plaintiff’s counsel here handed a paper to the witness, who testified : The paper now shown to me, is the memorandum signed by Pentz, which he tried to take from me, or at least, as much of it as remained in my possession; I had read it before it was torn, and knew at that time its contents ; I framed the original memorandum; another paper was at the same time placed in the witness’s hands, which he stated to be a copy of the torn agreement, made by him in about 20 minutes after the occurrence above mentioned.

Plaintiff’s counsel here proposed to read said torn agreement, and the said copy thereof, but the reading of the same, or a copy thereof, was objected to by defendant’s counsel, on the grounds:

1st. That there was no sufficient delivery proved of the original contract, and second, that secondary evidence of the original was not admissible, and that notice to produce the portion-of the memorandum in defendant’s possession had not been given.

p. 575

The judge decided that neither the contract nor the copy should be read. To which decision plaintiff’s counsel duly excepted.

Same witness in continuation, testified : When witness brought back $400, he told Pentz that was the sum, he, Pentz, required ; Pentz said he would not have it now, and refused to carry out the contract or complete the bargain ; witness then left; he subsequently, in the course of the same day, took a letter from plaintiff’s attorney to Pentz; Pentz said he would give an answer.

In reply to a juror, witness said : That in the above transaction he acted as the friend of the plaintiff, not as a broker; was not a partner of plaintiff’s at that time, but is a partner now.

Plaintiff’s counsel was proceeding to examine witness as to the value of the hides, with a view to ascertain the amount of damages, when counsel for defendant objected, on the ground that it was unnecessary to prove the amount of damage until the plaintiff proved a contract, and the judge decided that unless the plaintiff could give some further evidence of a contract, he would not receive evidence of the amount of damage sustained for the breach of a contract unproven ; to which decision plaintiff’s counsel duly excepted.

Plaintiff thereupon rested his case, and defendant’s counsel asked for a dismissal of the complaint.

Plaintiff’s counsel opposed said motion, and insisted that he was entitled to go to the jury.

His honor, the presiding judge, dismissed the complaint, on the ground that no sufficient evidence had been given of the execution and delivery of a contract in writing, to which decision plaintiff’s counsel duly excepted, and his exception was entered.

O’Gorman for appellant.

H. A. Cram, for respondent.

By the Court.

When the plaintiff proposed to read in evidence the torn agreement, and the copy of the entire agreement, he had proved presumptively, that the parties

p. 576

had agreed upon the terms of a sale of the hides, a written contract, expressing those terms, had been signed by the plaintiff, and received by the defendant, and a transcript of the same signed by the latter, and delivered to the plaintiff. After this, and before the parties separated, the defendant had dictated a further term or condition of the sale, and then acquiesced, apparently, in a substitute for that. And when the plaintiff was finally leaving, he fell back on the deposit, thus previously dictated, and when the plaintiff returned with the deposit, and offered to comply with his very unreasonable demand in that particular, he repudiated the contract altogether.

It seems to us very clear, that on the evidence thus given, and on the written agreement proposed to be read, the plaintiff was entitled to take the verdict of the jury, on the question, whether the agreement was not delivered absolutely, before the defendant made any remark about the required deposit. It was a question of intention, as to which there might be some doubt in consequence of what was said after he signed the contract and gave it to the plaintiff. The weight of the evidence on that point was decidedly in favor of the plaintiff. Certainly it was such that the court could not, with propriety, withdraw it from the consideration of the jury, and hold it in favor of the defendant.

If the contract were delivered conditionally, that condition was the deposit of four hundred dollars. The plaintiff was entitled to a reasonable time in which to make the deposit, and so far as it appears in the case, he did make it within the requisite time. If he did, the condition was fulfilled, and the delivery of the contract became absolute. It is a mistake to suppose that the delivery on the part of the defendant was revocable, and that the moment the plaintiff left to go after the money required to be deposited, the defendant could revoke the contract and refuse to be bound by it.

There was a full and complete written contract between the parties, signed and delivered, to take effect on the doing of afi act without the contract, which in point of law, no time for it being stipulated, was to be done in a reasonable time. Until that time elapsed, the defendant was not at liberty to withdraw from the contract. He could not recall what had been

p. 577

done. He could rely only upon the condition, and avail himself of its breach as the reason why he should not be bound. If the condition were performed, his engagement became absolute.

If the proof given did not show conclusively that the plaintiff complied, in a reasonable time, with the condition attached to the delivery, it was at least sufficient to go to the jury on that question.

It does not appear for what cause distinctly, the learned judge refused to permit the mutilated agreement and the copy of the entire contract to be read. If it were because the delivery of the contract was incomplete, or was revoked, what we have said on that subject disposes of the point. If it were because no notice had been given to the -defendant to produce the portion of the mutilated paper which he had torn off in his struggle to take it from the witness, we think the decision excluding it was erroneous.

The party against whom the parol evidence of the missing portion was offered, had effected the physical destruction of the instrument to the extent of that portion. He had torn it off by violence, with the obvious intention of destroying the whole. He sought the paper, not to keep it as a valid instrument, but to avoid it. His acts show that if he had succeeded, he could have cancelled it. There is no evidence that he actually kept the fragment which he tore off, and from the circumstances of the act, the court was bound to presume that he did not. As against him, the plain determination to destroy the whole, is sufficient evidence, at least presumptively, that he destroyed the part which he obtained.

It follows that the plaintiff was at liberty to produce the mutilated contract, and to supply the part torn off by parol evidence.

The judgment at the special term must be reversed and a new trial ordered, with costs to abide the event of the suit.