Baird v. Walker

12 Barb. 298, 2 Edm. Sel. Cas. 268, 1851 N.Y. App. Div. LEXIS 81

• Court: New York Supreme Court
• Decided: December 1, 1851
• Status: Published

Opinion

By the Court,

Edmonds, P. J.

The first prominent objection made to the recovery in this case is founded on the fact that the debt was a joint one of Walker & Hurlburt, while the attachment was issued only against Walker. I can not feel the force of the objection; for it is evident that Walker, although he was jointly indebted, came within the statute, inasmuch as he was a person not being a resident of this state, indebted on a contract made within this state; (2 R. & 3, § 2;) and he could be proceeded against under the statute.

The next objection is, that a proper demand was not made by the plaintiff, on his agents, Walker & Co. The demand was upon Hurlburt, one of the debtors, for the articles, or a settlement, and neither were accorded by him, at the time. That was enough, and authorized a suit.

[New-York General Term, December 1, 1851.

The remaining question is whether the claim was barred by the statute of limitations. The goods were left for sale in September, 1838, and the attachment was not sued out until December, 1847,—more than nine years after. .■ _

Where goods are thus left with factors for sale on commission, the owner has no cause of action for the price or value of the goods until a demand by him. In this case, no demand was made until July, 1847, and until that date there was no cause of action. (Lillie v. Hoyt, 5 Hill, 395. Hays v. Stone, 7 Id. 130.) The statute of limitations did not then apply; and there was enough in the evidence to warrant the judge in submitting the case to the jury, as he did, on the question whether the property had not actually been sold and the money therefor received by the defendants.

Motion for new trial granted, with costs.

Edmonds, Mitchell and King, Justices.]