Young v. Ingalsbe

• Decision Date: 03 June 1913
• Citation: 102 N.E. 590,208 N.Y. 503
• Parties: YOUNG v. INGALSBE.
• Court: New York Court of Appeals Court of Appeals

208 N.Y. 503

102 N.E. 590

YOUNG

v.INGALSBE.

Court of Appeals of New York.

June 3, 1913.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by William E. Young against Grenville M. Ingalsbe, as executor of Lyman H. Northup, deceased. From a judgment of the Appellate Division (151 App. Div. 375,135 N. Y. Supp. 939) modifying and affirming a judgment for defendant entered upon the report of a referee to hear and determine the action, plaintiff appeals. Affirmed.

Erskine C. Rogers, of Hudson Falls, for appellant.

Thomas A. Sherman, of Hudson Falls, for respondent.

COLLIN, J.

The plaintiff claimed, as a creditor, a sum from the estate of Lyman H. Northup, deceased. The statute of limitations barred his recovery (except as to one item allowed by the judgment of the Appellate Division), unless a transaction between the plaintiff and the deceased constituted a sale by the latter to the former of his interest in certain books and the crediting by the former of the price upon the indebtedness, and prevented its application. The question for our determination is: Did the transaction effect that result?

The transaction as found by the referee was: The plaintiff and the deceased owned, with equal interests, a law library. The deceased was indebted to plaintiff and they, at a stated time, entered into an agreement, wholly unwritten, whereby the plaintiff purchased the interest of the deceased, the purchase price to be applied by the plaintiff upon the indebtedness. Immediately after the time when the agreement was made, the plaintiff accepted of the interest and caused to be pasted upon the backs of the books leather labels with his name printed thereon, took possession, and assumed and still assumes ownership of the books, and gave the deceased credit for the sum of $77 on account of and pro rata on the several items of the indebtedness.

The part of the statute of frauds relevant to the transaction is: ‘Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking: * * * (6) Is a contract for the sale of any goods, chattels or things in action for the price of fifty dollars or more, and the buyer does not accept and receive part of such goods, or the evidences, or some of them, of such things in action; nor at the time, pay any part of the purchase money.’ Personal Property Law (Consol. Laws 1909, c. 41) § 31.

[1] The statute made void the verbal agreement in the present case unless there was, subsequent to and in pursuance of it, either the acceptance and receipt by the plaintiff of Northup's interest or the payment by him, at the time the agreement was made, of the purchase price or a part thereof. The rule of the common law that a mere contract for the sale of goods, where nothing remains to be done by the seller before making delivery, transfers the right of property, although the price has not been paid nor the thing sold delivered to the purchaser (Olyphant v. Baker, 5 Denio, 379;Bissell v. Balcom, 39 N. Y. 275), is devitalized by the statute in the cases within its provisions. In those cases the statute renders essential to the proof of a valid contract of sale, not only evidence of the verbal contract, but also evidence of a receipt and acceptance by the vendee of a part of the goods or of a payment at the time the oral agreement was made. The contract must be authenticated by a prescribed act of the parties in pursuance and part performance of it. The act may originate with the vendor or vendee; with the vendor if a delivery of part of the goods and their acceptance by the vendee is the ground for validating the contract; with the vendee if part payment is relied upon. In either case the participation and assent of both parties to it is necessary. The receipt of the goods by the vendee implies a delivery by the vendor. Delivery and receipt of the goods without acceptance is insufficient, and payment implies a receipt and acceptance of the consideration by the...