Bronson v. Wiman

10 Barb. 406

• Court: New York Supreme Court
• Decided: January 15, 1851
• Status: Published

Opinion

By the Court, Gridley, P. J.

This action was brought for the non-delivery of two thousand barrels of flour upon a contract, of which the following is a copy : “ Mem. of an agreement between T. Wiman and Bronson & Crocker. 1 have sold Bronson & Crocker two thousand barrels superfine flour, to be delivered in Troy or Albany, as B. & C. shall direct, at four iAnj dollars per barrel. The charge for inspection, if any, to be paid by B. & C. This flour is to be the first 2000 barrels shipped from the mill after this date, and we, Bronson & Crocker, agree to receive the above flour, and pay for the same in New-York funds. T. Wiman.

Bronson & Crocker,

Oswego, Oct. 16,1845.

per E. T. Bronson.”,

On the 20th of October of the same year, Bronson & Crocker, by letter, directed the flour to be delivered at Albany to J. K. Wing, who, it was stated in the letter, would pay for the same; and asked for information whether any flour had been shipped, and if not, how soon it would be. No answer having been received, on the 20tli of November the plaintiffs addressed another letter to the defendant, reminding him of his contract, and demanding its performance, by a delivery of the flour to said Wing at Albany, who, the note stated, would pay for the same.

I. On the trial an exception was taken to the sufficiency of the proof of the contract. We think it was sufficiently proved in the first instance. But if there was any defect in the proof when the contract was read in evidence, it was supplied after-wards, by the testimony of the agent who executed it for the plaintiffs. (See Hayden v. Palmer, 2 Hill, 205; 6 Cowen, 484, 5, 490.)

II. After the plaintiffs had rested their cause, the defendant’s counsel moved for a nonsuit, on the ground that the plaintiffs had not shown payment, or performance', or any tender of payment or performance, and also because they had not shown that they, or Wing, either had or could get New-York funds either at Albany or elsewhere. The judge denied the motion; holding that there was evidence enough to be submitted to the jury. To this decision there was an exception, and the question. on this motion is, whether the ruling of the judge was correct. We hold the decision of the judge on the question of nonsuit right.

1. It is to be observed that by the terms of the contract the delivery of the flour was to be made in Troy or Albany, at the plaintiffs’ election; and that they subsequently elected that the delivery should be made to Mr. Wing at Albany, and gave notice of their election to the defendant. Albany, then, was the place of delivery and the place of payment. As the flour was never delivered, nor offered, at Albany, or elsewhere, it is manifest that there could neither be payment nor tender of payment.

2. As to the proof of readiness and ability to pay in New-York funds, it will be borne in mind that the time of delivery was uncertain; and that in their letter of the 20th of October, the plaintiffs request to be notified of the shipment of the flour. This is clearly a different case from a contract where the titne as well as the place is rendered uncertain by the terms of the contract. In the latter case it would behoove the purchaser to have on hand the funds with which to make payment; but were the plaintiffs bound to keep $10,000 of New-York funds on hand, to pay for the flour whenever it should arrive? Would not the facilities for raising this sum, whenever the flour should arrive, be all that a reasonable interpretation of the rule would require, especially when the defendant was assured, both in the letter of the 20th of October and in that of the 20th of November, that Mr. Wing would pay for the flour on delivery ? and can a defendant who has violated his contract, and never made the experiment by an offer of the flour and a demand of the money, insist that proof of an ability to pay and of the possession of New-York funds during the whole succeeding fall, should be required of the plaintiffs ? It seems to us that the very slightest evidence of an ability to pay for this flour, according to the contract, would satisfy the rule, which is admitted, as a general proposition, to be binding on the purchaser. The evidence, however, which the plaintiffs were able to give of their ability and readiness, was entirely sufficient to warrant its submission to the jury ; even if the time as well as the place of delivery, had been designated in the contract. This evidence may be viewed in two aspects. 1st. Whether there was sufficient evidence of an ability and readiness to pay for the flour in funds generally. 2d. Whether there was any evidence that New-York funds could be obtained.

(1.) Upon the first branch of this question the case of Coonley v. Anderson, (1 Hill, 520,) is a decisive authority. This was an action to recover damages for the non-delivery of a crop of barley by the first of November, 1885. A clerk of the plaintiffs testified on his direct examination, in general, “ that the plaintiff was ready and willing to receive and pay for the barley all that fall;” but on his cross-examination he admitted “that he did not know whether the plaintiff had any money to pay for the defendant’s barley on the first day of November, but knew that he had money to pay for barley about that time ; yet he could not state that he had any money for that purpose on that day, different from any other day.” After this, several distinct questions were put to him by the plaintiff’s counsel, which were overruled, and the plaintiff was nonsuited. This nonsuit was set aside by the supreme court, and an elaborate opinion was delivered by Judge Bronson in support of that decision. The learned justice says, that in his judgment enough was proved by the clerk to carry the cause to the jury ; and at all events the specific questions which were overruled should have been allowed to be put. Among those questions were the following : “Was the plaintiff buying barley during all the months of October and November in that year ? Can you say he had sufficient money about the first of November? Was the plaintiff desirous of buying barley at five shillings per bushel ?” The judge then proceeds to say that it seemed to have been supposed that the plaintiff was bound to make out his averment by direct proof, but that was an erroneous opinion. Presumptive evidence was enough; and evidence that the plaintiff was purchasing barley—and that he had either in possession or at his command at the shortest notice, such sums of money as showed his ability to fulfill his contract, would be sufficient. Now in the light of this luminous exposition of the law on this point, let us look at the evidence of an ability to pay for this flour, in the case under consideration. It appeared in evidence that the flour was purchased, and was owned in equal proportions by Bronson & Crocker, Tomlinson, and J. K. Wing of Albany. The flour was worth more than the contract price. The witness Chipman was a clerk of Mr. Wing, who had written the letter to Tomlinson desiring him to purchase flour at five dollars per barrel. Chip-man when examined on this point, testified as follows : “We had been advised of this contract, and I had a copy of it. We were prepared to pay for this flour whenever received.” On his cross-examination he said, “ the paper purported to be a copy of this contract. I am sure of its being a copy since I have heard this read. I don’t know whether the plaintiffs had funds in Albany or not. I was clerk in Mr. Wing’s establishment. I know that every demand against Wing was paid at that time promptly; and that he was preparing to pay for this flour if it arrived. I know that, because I heard him- say so. Mr. Wing had facilities for raising money to any amount he pleased, sufficient to pay for 2000 barrels of flour.” Here, then, was an advantageous contract; a wholesale flour-dealer, who had facilities for raising any sum he pleased; who was interested to one-third in the contract; who paid any demand promptly at the time ; and who had received advices of this contract, and had been preparing to meet it—and the question is',' whether there was any evidence to submit to a jury of an ability and readiness to pay! He who can seriously question this, can not agree with the learned judge who gave the opinion, in Coonley v. Anderson; for the evidence in this case is immensely stronger than in that; and yet in that case the nonsuit was set aside.

(2.) Upon the second branch of this objection, viz. that there was no evidence that Mr. Wing could procure Hew-York funds in which the payment was to be made by the contract, I will add a few words. The first branch of the charge was excepted to on the same ground, and the judge remarked in reply to this objection, that if Mr. Wing had the money he could easily have purchased a draft on Hew-York. I should have supposed that the court might be presumed to be acquainted with the common and ordinary modes of transacting commercial business, had not the opposite doctrine been so strenuously asserted on the argument. It is. laid down in Chitty on Pleadings, that the courts will take-notice of the division of the country into counties, an'd of what counties are incorporated, &c. We know, therefore, that there is such a city as New-York, and such a place as Albany. We also are charged with an acquaintance with all the public statutes establishing banks, in New-York and Albany, and regulating the business of banks; one branch of which is dealing in exchange. We may also be presumed to know the several statutes prescribing the rates of exchange between this state and the several other states of the -union, and it is a fair presumption that the rate of exchange between Albany and New-York (both places being within the state) would be less than between a place in this state and a place in a foreign state. It will follow that the advance to be paid for New-York funds will not be so great as to put it beyond the power of a party who has contracted to pay in New-York funds, to obtain them in the city of Albany. Independently of this, a knowledge of the ordinary business of the state is constantly assumed by the courts. For these reasons we see no error in the refusal to nonsuit the plaintiff.

III. The letter from Wing to Tomlinson contained all the news which Crocker had of the steamer. And as his representations were charged to be fraudulent, on the ground of the possession of news of the steamer, it is very clear that the letter was competent testimony. It was offered, and received by the court, as evidence of a negative character, showing that Crocker could not have had so much knowledge of the market as the other evidence tended to prove. In that view it was competent evidence. It would show with precision, the whole information, and in the most reliable manner, which either Tomlinson or Crocker possessed ; and would prevent all conjecture as to the contents of the letter, and all speculation as to Tomlinson being mistaken and Crocker having actually seen the letter before his interview with Wiman. The character of the letter produced by Y. Suydam would lead to conclusions which rendered the admission of the letter in question but an act of justice to Mr. Crocker.

IV. In the progress of the trial, and after an attempt had been made to prove that the contract had been procured by fraudulent representations, the plaintiff offered evidence to show that after the defendant had become acquainted with all the facts of the case, he declared himself satisfied, and reaffirmed the contract. This evidence was objected to, on the ground, 1st. That the plaintiffs were not present; and 2d. That the bargain could not be confirmed by parol. The first objection was not founded in fact; for the declaration was made to Mr. Crocker himself. The second objection is untenable for two reasons. It was obviously founded .on the idea that the contract was within the third , section of the statute of frauds. (2 R. S. 136.) This section t respects the sale of goods exceeding the amount of fifty dollars 1 in price, and among other things declares the sale void, except * it be in writing. Now it will be'remembered that this was a contract to deliver 2000 barrels of flour, to be ground out of wheat that had been bargained for, but not received by the defendant. This appears from the testimony of the witness White. This is like an agreement for the sale of wheat which, at the time of the contract, was not threshed, (Alexander v. Comber, 1 H. Black. 20,) or a contract for oak pins to bo made out of slabs. (3 Maule & Sel. 178.) Such contracts are not within the statute. (7 Term Rep. 16. 18 John. 58.) But there is another reason which is fatal to this objection; and that is that the question is not one of variance or alteration of a contract, as was the case of Sanford v. Halsey, (2 Denio, 242, 3,) but a case of simple affirmation of a contract which was supposed to be voidable. We will suppose, therefore, for the sake of the argument, that in this respect the case at bar resembles the contract of an infant, which requires confirmation. A note or deed of an infant may be confirmed by any decisive act, as a promise to pay it, and sometimes by simple acquiescence. (2 Kent’s Com. 238, 9. 11 Serg. & Rawle, 305. 1 Hayw. 143. Hubbard v. Cummings, 1 Greenl. 11.) These are all the grounds of objection to the introduction of the evidence, which were mentioned at the time it ivas offered.

V. An exception was taken to the first branch of the charge, which has been already considered under the second point. There was also an exception to the last branch of the charge, in which the judge instructed the jury as follows, in regard to the reaffimation of the contract. “ That if they believed that Wiman, after receiving information of the arrival of the steamer, and of the rise in the price of flour, and that he had either knowledge- or fair notice or reason to believe that he had been ‘deceived, then reaffirmed the contract, he would be bound by such reaffirmation ; for by such reaffirmance the plaintiffs would be bound to provide funds to pay for the flour in Albany, on its delivery there; whereas if Wiman had at once disaffirmed the contract, then no such necessity would have existed. But they must be satisfied that Wiman intended to reaffirm, it. To this branch of the charge the defendant excepted “ for the reason that there was no evidence to show that Wiman, though he knew of the rise in prices, was aware that Crocker had deceived him.” To which the judge remarked that the words used by Wiman were, “ They say you have shaved me;” and that after that it was a question for the jury.

Now it is true there is no direct and positive evidence that Wiman knew he had been deceived, except his own declarations; but there were circumstances from which it might be presumed. From the evidence of Philo Stevens it can hardly be doubted that the fact of Tomlinson’s visit to Crocker, of Crocker’s large purchases from others, and of the fact that Tomlinson brought news of some kind, was known to Wiman, and every other miller in the Oswego market, some hours before seven o’clock in the evening, when the interview between Crocker and Wiman took place. But the word “ shaved” is to be understood in its offensive sense, and is equivalent to saying “You have deceived me, you have defrauded me, or you have overreached me by fraud.” Suppose however the word was equivocal, and might be understood in an innocent sense; then it was for the jury to say in what sense it was used. (Dolloway v. Turrill, 26 Wend. 383. 6 Barb. 47, and cases there cited.)

Here the case ends. The jury have determined every other .question; and thereWas.no objection to the submission of those questions to the jury; nor to the manner in which they were submitted. But other questions have been argued, and it may be well to consider them.

1st. It is said—but no authority has been furnished us to support it—that the same rule prevails in the case of the affirmation of a contract voidable for fraud, as that which obtains in the case of the confirmation of an infant’s contract. But the case of an infant stands on ground peculiar to itself. As a general rule, an infant must reaffirm the contract, expressly, by a promise made to the other party, or his agent. (2 Kent’s Com. 238. 19 Wend. 301. 2 Bam. & Cress. 824. 4 Wend. 405.) How did not the evidence in the case under consideration come up to this ? Let us see. The witness Renaud testifies that Wiman said to Crocker, “ Why Crocker, they say you have shaved me.” Crocker said he “ did not know.” That they conversed some time without the witness paying attention to what was said, till he heard Wiman say “ he was satisfied with the bargain; for he was sure of making one dollar a barrel, and Crocker w'as not sure of making any thing.” This was nothing more nor less than an explicit ratification of the contract. “ I am satisfied with my bargain,” notwithstanding you have shaved or deceived me. Why was he satisfied ? He gives us the best of reasons, in the next sentence—“for I have purchased my wheat at such prices that I am sure of making a dollar on every barrel of flour; and with a certainty of making $2000 I am satisfied. And you are not certain of making any thing. True by the present news, the flour is w'orth a small advance on the barrel; but the next arrival may show a fall of more than that sum per barrel. I have $2000 clear profit in my hands. You have an expectation of an advance, which may vanish with the news from the next steamer.” Such is the language of the defendant, and we think it entirely clear, certain and unequivocal. How could he be sure of making $2000 unless the contract was affirmed? And how could he say that Crocker was not sure of making any thing, unless with reference to the contract ? and how could he say he was satisfied with his bargain unless he affirmed it ?

2d. But we do not assent to the doctrine, that the. case is to be assimulated to that of an infant. Whenever one has been defrauded he may rescind or affirm the bargain; but if he rescinds, he must so do promptly ; as soon as he discovers the fraud. And this, whether the contract be executed or executory. (Chit. on Cont. Am. ed. of 1842, p. 608, 9, 680.) The same great principle of good faith requires the defendant to-speak promptly in the one case, as in the other. If he does not disaffirm the contract, then the plaintiffs are obliged to make arrangements for raising $10,000 of New-York funds, and they may forbear to purchase other flour, relying on this contract already made. But in this case the defendant did more : he expressly, in the most unequivocal terms, reaffirmed the bargain. And he is estopped from disaffirming the contract by the principle of estoppel in pais. (6 Hill, 534. 3 Id. 215. 4 Metc. 381. 18 Conn. R. 138. 9 Barn. & Cress. 509, 57.) See, also, on the question of re-affirming a contract, 1 Adol. & Ellis, 40 ; 1 Denio, 69; 4 Id. 559 ; 9 Barn. & Cress. 59; 5 Mee. & Wels. 83; 4 Mass. Rep. 502; 24 Wend. 76; 4 Paige, 541. 12 Pick. 311.

Why should a different rule be adopted in relation to a contract which a party is at liberty to abandon on the ground of fraud, than is applied in other cases ? The answer is, that it is extremely improbable that a man who has been defrauded would affirm a contract from which the law' absolves him. And we are referred to the case of Moore v. Royal, (11 Ves. 373,) for the rule. In that case, the lord chancellor says the improbability is so great, that the party would have affirmed his contract, that it requires strong evidence to establish it. The fact is otherwise here. In this case it was an act of prudence in Wiman to affirm the contract, and make his $2000. The case of Moore v. Royal, however, does not declare the rule to be the same with that which prevails in the Case of infants; nor does it attempt to prescribe the character of the evidence required to establish the affirmance of a contract. In the case of an instrument that is proved to be forged, its adoption by the party sought to be charged, may be proved by any competent evidence that shows the fact of adoption. The case of forgery is much stronger than a case of fraud. In the one case the instrument is a nullity: in the other, it is merely voidable. Whatever, therefore, would affirm a forged instrument, a fortiori would be sufficient to affirm a beneficial contract, though it were tainted with fraud. (Phillips v. Ford, 9 Pick. 39.) So a debt barred by the statute of limitations may be revived by a new promise, or by any facts from which such promise may be inferred. So, too, a debt that has been discharged by an insolvent or bankrupt law, may be restored by a promise less strong than that proved in this case. But,

3d. The jury did not, probably, come to the question of a confirmation of the contract. By looking at the case, it will be seen that after the jury were charged, the judge, with a view to know the ground on which the verdict was based, put three specific questions to the jury, in writing, and without objection: First, whether Crocker’s representations were fraudulent. Second, if so, whether Wiman was actually deceived by means of such representations, or whether he sold independently of those representations, not influenced by them. And, thirdly, whether the contract was reaffirmed. The jury found a general verdict, which they placed on the ground that they found the second of the said questions in favor of the plaintiff. Of course they found against the fraud; that is, that Wiman was not deceived, but acted independently of the representations made to him. It follows that the question of the reaffirmation of the contract is out of the case.

The motion for a new trial must be denied.