Tuthill v. Skidmore

• Decision Date: 14 January 1891
• Citation: 26 N.E. 348,124 N.Y. 148
• Parties: TUTHILL et al. v. SKIDMORE et al.
• Court: New York Court of Appeals Court of Appeals

124 N.Y. 148

26 N.E. 348

TUTHILL et al.

v.SKIDMORE et al.

Court of Appeals of New York,

Second Division.

Jan. 14, 1891.

Appeal from a judgment of the general term of the second judicial department affirming a judgment for the plaintiffs entered on a verdict directed at circuit. September 11, 1886, the plaintiffs, under their firm name of Ellsworth Tuthill & Co., and Walter E. Lawton, doing business under the name of Lawton Bros., entered into the following written contract: ‘September 11, 1886. Sold for account of Messrs. Ellsworth Tuthill & Co. to Messrs. Lawton Brothers, New York, five hundred tons sellers' usual good moke platform-dried fish scrap, not treated with acids, of this season's make, to be ready for delivery before close of sellers' works, at $28 per ton, of 2,000 lbs., actual weight in bulk, F. O. B. sellers' factory, Promised Land, Long Island. Terms: Payment by buyers' notes at four months, whth interest added at a rate of six per cent. per annum from date of delivery on presentation bills of lading, invoice, weigher's return, and Stillwell & Gladding's certificate of moisture. If scrap removed before closing sellers' factory this fall, or if scrap is not removed before such time, buyers are to give their notes, bearing same interest, for an approximate amount, bearing date of such closing. Buyers to have privilege of leaving scrap at their own risk, free of charge for storage, till opening of fishing season of spring, 1887, provided, if they require any scrap between such closing and opening, buyers are to pay thirty-five cents per ton for loading. Scrap guarantied not to exceed twelve per cent. moisture. Stillwell & Gladding's analysis from samples drawn in the usual way. Scraps to be in good order and condition.’ From the date of this contract to the date of the trial of this action, (October 25, 1887,) the plaintiffs, at all times, had on hand at their pactory at Promised Land, L. I., more than 500 tons of fish scrap of the kind and quality mentioned in the contract, but neither the quantity sold nor any part of it was ever set apart for the vendee. November 12, 1886, the vendee gave the vendors, towards the purchase price, three promissory notes, signed by the purchaser, and payable to the order of the sellers, of the dates, for the amounts, and due, as follows:

+-----------------------------------------------------+
                ¦Date.              ¦Due.  ¦    ¦      ¦     ¦   ¦    ¦
                +-------------------+------+----+------+-----+---+----¦
                ¦November¦12,¦1886..¦$5,000¦Four¦months¦March¦15,¦1887¦
                +--------+---+------+------+----+------+-----+---+----¦
                ¦“       ¦19,¦“     ¦$5,000¦“   ¦“     ¦“    ¦22,¦“   ¦
                +--------+---+------+------+----+------+-----+---+----¦
                ¦“       ¦26,¦“     ¦$3,000¦“   ¦“     ¦“    ¦29,¦“   ¦
                +-----------------------------------------------------+
                

The purchase price was $14,000, and, after deducting these notes, $1,000 remained, which was never paid, nor was a note given for it. These notes were all dishonored, and have never been paid, nor has any part of the purchase price of the property. About the 1st of December, 1886, the plaintiffs sent the purchaser the following receipt: ‘Ellsworth Tuthill & Co., Manufacturers of Menhaden Oil and Guano. Factory at Promised Land, L. I. Promised Land, N. Y., Nov. 12, 1886. We hereby certify that we hold five hundred (500) tons of platform-dried fish scrap, of good quality, and in good condition, in bulk, subject to the order of Messrs. Lawton Bros., in our factory at Promised Land, Long Island, Suffolk county, N. Y., as per terms of contract. Dated September 11th. ELLSWORTH TUTHILL & Co.’ March 24, 1887, Joseph L. Morton began an action in the supreme court against Walter E. Lawton for the recovery of money, in which an attachment was issued, by virtue whereof, March 28, 1887, the defendant Skidmore, as sheriff, and the defendant Hand, as his deputy, levied upon and seized five hundred tons of fish scrap then stored at the plaintiffs' factory. The quantity attached was not separated from a larger quantity of which it was a part, and was never removed from the plaintiffs' premises. June 15, 1887, Morton recovered a judgment against Lawton in that action for $22,629.66, which was entered in the office of the clerk of the city and county of New York, a transcript of which was duly filed, and the judgment duly docketed June 27, 1887, in the office of the clerk of the county of Suffolk. May 13, 1887, the plaintiffs demanded of the defendants that they release the attachment, and surrender the property to them, which was refused, and on the next day this action in replevin for the recovery of the property was begun. Upon the trial, each party asked that a verdict be directed in his favor, neither claiming that there was any question of fact for the jury. A verdict was directed for the plaintiffs, upon which a judgment was entered, which was affirmed at general term.

Abram Kling, for appellants.

Thomas Young, for respondents.

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

It will be assumed that the title to the property passed to the vendee, which is the most favorable view which can be taken of the case for the defendants. Permitting commercial paper to be dishonored by one engaged in commerce, and his property to be attached in an action in which judgment is subsequently recovered by default, is evidence, and, if unexplained, is proof, of insolvency. Brown v. Montgomery, 20 N. Y. 287;Booth v. Powers, 56 N. Y. 22, 32; Abb. Tr. Ev. 616. Neither party asserting at the trial that Lawton's solvency was a question of fact for the jury, the court was justified in holding, as a question of law, that he was insolvent. When the price of goods sold on credit is due and unpaid, and the vendee becomes insolvent before obtaining possession of them, the vendor's right to the property...