Jackson v. Tupper

• Citation: 101 N.Y. 515,5 N.E. 65
• Parties: JACKSON and another v. TUPPER and others.
• Decision Date: 02 March 1886
• Court: New York Court of Appeals

101 N.Y. 515

5 N.E. 65

JACKSON and another

v.TUPPER and others.¹

Court of Appeals of New York.

Filed March 2, 1886.

N. P. Hinman, for appellants.

G. B. Wellington, for respondents.

ANDREWS, J.

It is conceded that the oral contract of February 28, 1880, for the sale and storage of the ice, was, when made, void, under the statute of frauds. It must also be conceded, under the decisions in this state, that it was not validated by the payment made in May, 1880. By our statute, payment operates to take an oral contract for the sale of goods for the price of $50 or more, out of the statute, only when made at the time of the contract. 2 Rev. St. 136, § 3. The decisions have construed this provision of the statute with great strictness.Hunter v. Wetsell, 57 N. Y. 375;S. C. 84 N. Y. 549;Allis v. Read, 45 N. Y. 142. It is in substance held that payment subsequently made, although conforming to the oral agreement, is insufficient of itself to make the prior oral agreement valid. There must be enough, in addition to the act of payment, to show that the terms of the prior oral contract were then in the minds of the parties, and were reaffirmed by them, and this being shown a cause of action arises, not on the prior oral contract, but on the new contract made at the time of the payment. The plaintiffs did not bring their case within this principle. There was no restatement of the terms of the prior oral agreement when the payment of May 1, 1880, was made, and no express recognition thereof, nor was the payment made for the avowed purpose of binding the prior bargain. It is expressly found that when the payment was made nothing was said by either party about the contract of February 28, 1880, or its terms. But a prior void contract may be validated by a subsequent receipt and acceptance by the buyer, pursuant thereto, of the goods, or part of them, which are the subject of the contract. 2 Rev. St. 136, § 3; McKnight v. Dunlop, 5 N. Y. 537. Where this has been done, the cause of action arises on the original oral agreement, authenticated by the act of acceptance. There is no statute difficulty, as in the case of a subsequent payment, because the statute does not, as in that case, require that the acceptance must be at the time of the making of the oral agreement.

It was found in this case that, after the oral agreement of February 28, 1880, was made, ‘the said ice was received and accepted by the plaintiffs.’ It is impossible to construe the finding...