Equitable Co-Operative Foundry Co. v. Hersee

• Decision Date: 05 October 1886
• Citation: 9 N.E. 487,103 N.Y. 25
• Parties: EQUITABLE CO-OPERATIVE FOUNDRY CO. v. HERSEE, Ex'x, etc.
• Court: New York Court of Appeals Court of Appeals

103 N.Y. 25

9 N.E. 487

EQUITABLE CO-OPERATIVE FOUNDRY CO.

v.HERSEE, Ex'x, etc.

Court of Appeals of New York.

October 5, 1886.

Trover for certain stoves and stove furniture of the plaintiff claimed by him to have been converted by the defendant's testator. The property in question was sold and delivered by the plaintiff in the summer and fall of 1876 to the firm of M. Fisher & Co. on credit. The firm was composed of Martin Fisher and Sanford Whiting, and was engaged in the business of selling stoves and hollow ware in the city of Buffalo, where the defendant's testator resided. At the time of the purchase, the firm was insolvent, and was indebted in a large amount, nearly $10,000 of which was owing to defendant's testator. The plaintiff claims that it was induced to sell said goods to said firm on credit by false and fraudulent representations made by Fisher as to the means and pecuniary condition of the firm, and that said firm, knowing their insolvency, purchased the said goods with intent not to pay for them.

On August 12, 1876, the defendant's testator commenced an action against the members of said firm, in which he claimed judgment against them for the sum of $9,471.34, besides interest upon 26 promissory notes executed by said firm to him, at different dates, from May 1, 1872, to July 29, 1876. The defendants in that action made default, and Hersee, defendant's testator, did not enter up judgment against them until October 23, 1876. Most of the goods which form the subject of this action were delivered to Fisher & Co., and received by them, after Hersee sued them, and before he entered up judgment.

Soon after the said judgment was docketed, Hersee, by virtue of an execution issued on the same, levied on a portion of said property, of the value of $711.58, and bid it off at sheriff's sale, applying the amount of his bid towards the satisfaction of his said judgment. The plaintiff was informed of Hersee's judgment in October, soon after it was obtained. On November 25, 1876, the plaintiff signed an agreement to compromise its debts against Fisher & Co. at 25 cents on the dollar, conditioned, however, that it was not to be binding till all the creditors assented to the same. At the time of signing said compromise, the plaintiff had an oral stipulation with Fisher & Co. for a preference. The conditions of the compromise were not fulfilled, and the plaintiff received nothing under it. On March 28, 1877, the plaintiff commenced suit against Fisher and Whiting on the contract for the purchase of the goods. Fisher and Whiting appeared in the action by attorney, but did not answer, and made default. On April 18, 1877, the plaintiff's attorney served notice of adjustment of costs, but no adjustment was had, and no judgment was docketed, and the suit remained in that condition until after this action was commenced. The defendant's testator, who was the original defendant herein, set up that action as a defense, claiming that the plaintiff had elected thereby to affirm the contract, and thereupon the plaintiff, on September 26, 1879, obtained and entered an ex parte order, at a special term of this court, that the said action be discontinued on payment of defendant's costs. On the same day the plaintiff tendered to the attorney of Fisher and Whiting $10 for their costs in said action, which he declined to accept. On May 14, 1877, the plaintiff commenced suit against Hersee, in which Fisher and Whiting were named as defendants, but the summons and complaint were served on Hersee alone, and he alone answered. The allegations in the complaint upon which issue was taken and a trial had, were, in substance, that the purchase of...