Brady v. Cassidy

• Decision Date: 18 January 1887
• Citation: 104 N.Y. 147,10 N.E. 131
• Parties: BRADY and others, Ex'rs, etc. v. CASSIDY and another.
• Court: New York Court of Appeals Court of Appeals

104 N.Y. 147

10 N.E. 131

BRADY and others, Ex'rs, etc.

v.CASSIDY and another.

Court of Appeals of New York.

January 18, 1887.

Appeal from general term of court of common pleas for city and county of New York.

Action for price of goods sold. Judgment for plaintiffs. Defendants appeal.

John E. Parsons, for Cassidy and another, appellants.

Geo. H. Foster, for Brady and others, Ex'rs, etc., respondents.

RUGER, C. J.

Previous to June, 1883, Alfred Brady had for many years carried on the business of making plumbers' castings at a foundry and warerooms located in the city of New York. Having died in May of that year, his executors determined to dispose of the business and property on hand, and, in pursuance of that intention, early in June effected a transfer of what was called ‘the plant’ to the defendants, at a price agreed upon, and also leased the premises in question to them from the day of sale to the first day of January thereafter, and the defendants took immediate possession thereof. On the twentieth day of June, subsequently, they also sold to the defendants their stock on hand, and executed and delivered to them a written bill of sale reading as follows:

‘Sold to Cassidy & Adler the entire manufactured stock in good condition, consisting of pipes, fittings, flues, etc., now on hand at foundry and storerooms on 55th and 56thstreets, 10 and 11 aves. The price on same to be eighty (80) per cent. from list price, besides the sum of seven hundred dollars. The stock to be taken without tarring, and to be left on premises; the same to be paid for in cash. The receipt of one hundred dollars, as part payment of same, is hereby acknowledged.

I. WINTERBOTTOM, EX'R.'

The property sold being then upon premises occupied by the defendants, the execution of the bill of sale passed the title, and there remained nothing to be done to complete the purchase but the preparation of an inventory, and the ascertainment and payment of the net price of the property sold. The preparation of the inventory was immediately set about by the plaintiffs, and it was completed and delivered to the defendants some time about the middle of July, and it appeared therefrom that the net price of the property included therein was $11,955.33. Upon an examination of such inventory by the defendants, after its delivery to them, they discovered that it did not contain all the property purchased, and that a large amount of pipe, consisting proportionally of the most valuable part of the stock which had appeared among the goods on hand in the stock at the time of the sale to defendants, was not included in it, and, upon demanding an explanation of this circumstance, were informed by the plaintiffs that it had been delivered by them to other parties, customers of the foundry, after the day of sale, upon orders received by them previous to that time, and they claimed the right to make such delivery under the terms of the bill of sale. The defendants protested against this disposition of the property, and claimed damages for its removal from the foundry. The value of the goods, over the contract price, thus removed, amounted to several thousand dollars. This action was brought to recover the amount shown to be due by the inventory; and the defense was a counter-claim for damages arising out of the withdrawal by the plaintiffs of the pipe in question from the stock sold after the delivery of the same to the defendants. The question discussed relates to the validity of this defense.

No question was made on the trial but that the pipe in question was on the premises on the day of sale, and was exhibited to the defendants as a part of the stock by the plaintiff; but it was claimed that such goods ought not to be considered as included in the terms of the bill of sale. Neither was it claimed that there was anything ambiguous in the language of the bill of sale, or any doubt or uncertainty arising over the description of the property referred to therein; but it was claimed by the plaintiffs, and held by the trial court, that proof of the circumstances surrounding the sale and the situation of the parties created an ambiguity, which authorized the plaintiffs to give parol evidence to explain and apply the language used to the subject of the sale, and limit the effect of the description. The burden of establishing such a condition of things naturally rested upon the plaintiffs, and they attempted to meet by proof the responsibility thus cast upon them. Evidence was given by which it was attempted to be shown that they had, previous to June 20th, effected sales of pipe, fittings, etc., from the stock to third parties, which constituted the property delivered after their sale to defendants.

The evidence to establish such sales was extremely loose and unsatisfactory, and fails, as we think, to show any valid agreement for such sales. The principal witness on this question was one Newcomb, a former clerk of the plaintiffs, who claims to have bought the bulk of the property delivered after June 20th from the plaintiffs, and to have sold and delivered it to customers of his own directly from the warehouses leased to the defendants. Some of it was delivered after June 20th, to a purchaser who had previously promised to come and look at the stock, and select some goods for purchase; but the most of it was delivered to persons who had no relations with the plaintiffs, but bought directly of Newcomb after the twentieth of June. The only authority shown in Newcomb to make such sales arose from a notice given by him to one Finch, an employe of the plaintiffs, about a week previous to June 20th, to the effect that he would take the balance remaining in the stock of certain kinds of pipe and fittings then specified by him. These goods were not charged to Newcomb at this time, neither was any part of the purchase price then paid or goods delivered, nor was any memorandum in writing made of...