Coe v. Tough
| Citation | 116 N.Y. 273,22 N.E. 550 |
| Parties | COE v. TOUGH. |
| Decision Date | 08 October 1889 |
| Court | New York Court of Appeals |
Appeal from supreme court, general term, third department. The action is replevin, brought to recover the possession of personal property to which the plaintiff claims to have taken title, by purchase from the defendant, by virtue of the following written memoranda, to-wit:
‘The above goods are in my warerooms No. 22 Columbia St., Varick street, at storeroom of Hudson Agricultural Society, and are well insured.
‘HUDSON, N. Y. Feby. 18, 1885.
‘E. Frank Coe-Dear Sir: In order to liquidate and secure you in the payment of your account as now due, I will propose to do as follows:
It appears that defendant was indebted to the plaintiff $2,000. That on February 18, 1885, the collecting agent of the latter went to the defendant's place to collect the debt, or obtain security for its payment. That the defendant proposed to sell to the plaintiff, and the agent offered to purchase property on account of the debt. Thereupon the defendant drew the first-mentioned paper, and handed it to the agent, who then suggested that the defendant also give him a note to the plaintiff, stating what had transpired between them. The defendant wrote and subscribed the other paper, which was put in the envelope in which the other had been placed. The defendant on this occasion paid to the agent $25, to apply on the debt, thus reducing it to $1,975. The agent, having advised the plaintiff what he had done, returned to the defendant's place on the 21st of February, taking with him a draft chattel mortgage, which the plaintiff had caused to be drawn, and informed the defendant that if he preferred he might execute it. But the defendant declined to do that. And thereupon the agent requested a delivery of the property, to which the defendant assented, and promised to furnish a room on the premises in which it might be placed, and give him the key to it. The agent said that was satisfactory. The defendant said he would not have time to do it that time; and it was then understood that the agent would come again on Monday, the 24th, when the goods would be separated and received by him. For reason of which the defendant was advised on Monday, the agent did not go that day, but did the next day, when the defendant refused to deliver the property. The property was taken upon the requisition in this action, and delivered by the sheriff to the plaintiff. The trial court directed a verdict for the defendant.
‘Mr. E. Frank Coe, bought of William Tough,
Henry D. Hotchkiss, for appellant.
L. F. Longley, for respondent.
BRADLEY, J., ( after stating the facts as above.)
The first question presented is whether there was a valid contract made for the sale of the property by the defendant to plaintiff, and, if so, the further question will arise whether it was an executed one, so as to pass the title to the plaintiff, or was executory merely. As no part of the property was delivered to or received by the plaintiff, and none of the purchase money paid, as required by the statute of frauds, the sale was void, unless a note or memorandum of the contract was made in writing, and subscribed by the defendant. 2 Rev. St. p. 136, § 3. The form of the memorandum as drawn was, ‘E. Frank Coe bought of William Tough,’ followed by a list of the articles of property in question, with prices added. This paper was not at the end of it subscribed by the defendant, so that, standing alone, whatever view may be taken of its terms, it was not effectual as a contract of sale. James v. Patten, 6 N. Y. 9. But it is contended that the note or letter written on the same occasion by the defendant, subscribed by him, and addressed to the plaintiff, may be taken in connection with the first-mentioned memorandum, and the signature to the one treated as subscribed to both, each constituting part of the same instrument. To permit this to be done, so as to relieve it from the operation of the statute, the two papers must have been so physically united, or such reference made by one of them to the other, that they may be construed together as one instrument without the aid of oral evidence. Baptist Church v. Bigelow, 16 Wend. 28;Wright v. Weeks, 25 N. Y. 153;Drake v. Seaman, 97 N. Y. 230, affirming 27 Hun, 63; Stone v. Browing, 68 N. Y. 598. The two papers by their date purport to have been made at the same time; they are in the handwriting of the defendant; relate to the same subject; and the reference to the paper designated as a ‘bill of sale’ in the one embraces in figures certain amounts corresponding with those in the other. They sufficiently referred to the same transaction to permit them to be construed together, and to be given such effect as they were entitled to. Tallman v. Franklin, 14 N. Y. 584;Peabody v. Speyers, 56 N. Y. 230;Peck v. Vandemark, 99 N. Y....
To continue reading
Request your trial
-
Ideal Structures Corp. v. Levine Huntsville Develop. Corp.
...See, e. g., Peabody v. Speyers, 56 N.Y. 230; Raubitschek v. Blank, 80 N.Y. 478; Peck v. Vandemark, 99 N.Y. 29, 1 N.E. 41; Coe v. Tough, 116 N.Y. 273, 22 N.E. 550; Delaware Mills v. Carpenter Bros., 235 N.Y. 537, 139 N.E. 725, affg. 200 App.Div. 324, 193 N.Y.S. 201." 110 N.E.2d 553-554. Levi......
- Crabtree v. Elizabeth Arden Sales Corp.
-
Clifford v. Carrols New York Development Corp.
... ... See, e.g., Peabody v. Speyers, 56 N.Y. 230; Raubitschek ... v. Blank, 80 N.Y. 478; Peck v. Vandemark, 99 N.Y. 29, 1 N.E. 41; Coe v. Tough, 116 N.Y. 273, 22 N.E. 550; Delaware Mills v. Carpenter Bros., 235 N.Y. 537, 139 N.E. 725, affg. 200 App.Div. 324, 193 N.Y.S. 201 ... 'The language of the statute--'Every agreement * * * is void, unless * * * some note or memorandum thereof be in writing, and subscribed by the party to be ... ...
- Marks v. Cowdin