Johnston v. Trask

• Decision Date: 08 October 1889
• Citation: 116 N.Y. 136,22 N.E. 377
• Parties: JOHNSTON v. TRASK et al.
• Court: New York Court of Appeals Court of Appeals

116 N.Y. 136

22 N.E. 377

JOHNSTON

v.TRASK et al.¹

Court of Appeals of New York, Second Division.

Oct. 8, 1889.

Appeal from a judgment of the general term of the third department, entered on a verdict directed at circuit in favor of the plaintiff. Since January, 1882, the defendants have been bankers and brokers, doing business as partners under a firm name. On the trial of the issues, the plaintiff testified that on the 18th day of January, 1882, the managing partner of the firm, at its place of business, orally agreed with the plaintiff to purchase for him, if they could be bought in the market, income mortgage bonds of the Ohio Central Railroad of the par value of $10,000, ‘and, any time you want to get rid of them, we will take them off your hands at what they cost you.’ Later in the day, the defendants reported to the plaintiff that they had purchased the bonds for $4,800, and that their commissions were $12.50; and thereupon the plaintiff paid $1,000 towards the purchase price. The bonds were retained by the defendants as security for the sums due from the plaintiff to them until November 16, 1882, when the plaintiff paid the full purchase price for the bonds, commissions, and interest, and took them into his possession. The market price of the bonds declined until April 28, 1884, when they were selling for about 10 cents on a dollar. On this date the plaintiff tendered the bonds to the defendants, and demanded that they pay him $4,812.50, which they refused to do; and April 30, 1884, this action was brought, on contract, to recover that sum. The defendants did not contradict the plaintiff's evidence, which was corroborated by three witnesses; but at the close of his case they moved for a nonsuit on the grounds- First. That the oral contract was void for not complying with the following section of the statute of frauds: ‘Sec. 3. Every contract for the sale of any goods, chattels, or things in action, for the price of fifty dollars or more, shall be void, unless (1) a note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby; or (2) unless the buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action; or (3) unless the buyer shall, at the time, pay some part of the purchase money.’ Second. That the evidence was insufficient to sustain the conclusion that the managing partner had authority to bind the firm by such a contract. Third. That the plaintiff did not tender the bonds, and demand the repayment of the price, within a reasonable time, and thereby lost his right of action. The motion was denied, and, the defendnat not asking to have any question submitted to the jury, a verdict was directed in favor of the plaintiff for $4,800, with interest thereon from April 28, 1884. A judgment was entered on the verdict, which was affirmed by the general term.

Horace E. Smith, for appellants.

John M. Carroll, for respondent.

FOLLETT, C. J., ( after stating the facts as above.)

An oral contract by which a person sells his own chattels or choses in action for more than $50, payment and delivery being made, and agrees to take them back from, and repay the purchase price to, the purchaser on demand, is an entire contract; and the promise to take back the property, and repay the purchase price, is not void by the third section of the statute of frauds. Wooster v. Sage, 67 N. Y. 67;Fitzpatrick v. Woodruff, 96 N. Y. 561;White v. Knapp, 47 Barb. 549; Williams v. Burgess, 10 Adol. & E. 499; Fay v. Wheeler, 44 Vt. 292; Dickinson v. Dickinson, 29 Conn. 600; 1 Benj. Sales, (Corbin's Ed.) § 169. Executed contracts of sale, embracing a promise by vendors of chattels that in case they do not suit the purchaser, or do not possess certain specified qualities, the vendor will repay to the vendee the purchase price upon their return, have been frequently considered by the courts, (Towers v. Barrett, 1 Term R. 133; Thornton v. Wynn, 12 Wheat. 183;) but no case has been cited holding that such a promise on the part of a vendor is an independent contract. When an agent, by an oral contract, sells and delivers the goods of a disclosed principal, his personal oral warranty of quality is not a contract independent of the contract of sale, but is a part of it, and one consideration is sufficient to support the sale and warranty. The oral contract of the defendants that they would purchase for the plaintiff in the market, at market rates, the bonds, for the usual compensation, and, in case he should thereafter become dissatisfied with the bonds, that they would, on demand, take them off his hands at what they cost him, was a single contract. Under this contract, the bonds...