Church v. Lapham

94 A.D. 550, 88 N.Y.S. 222

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1904
• Status: Published

Opinion

Smith, J.:

We are of opinion that the trial judge erred in submitting to the jury the question as to whether there ever became a completed contract between the defendant and Myers & Manning. In the proposed contract, as .first signed by Myers & Manning, the defendant was given the right by default to retain whatever might have been paid upon the contract and all improvements that might have been made on said premises. To this the defendant did not agree, but added to the word “improvements” the words “including fixtures and machinery,” and signed the same. When this contract was returned to Myers & Manning, and they had notice of this interlineation, it was their right to refuse to accept the modification. The fact that in the meantime they had put money upon the premises, and had proceeded as though in ownership thereof, cannot alter the legal situation, as whatever they did before the completion of the contract was done at their peril. They had divers dealings with the defendant and his agent for a year and a half thereafter without one word of protest or objection to this modification, and under the circumstances in this case have, as matter of law, accepted this contract by acquiescence therein. This, we think, follows irrespective of the distinct recognition thereof, either in the letter of Manning dated December 9, 1902, or. in the chattel mortgage in the reference to the contract with the N. Lapham Co., to which the chattel mortgage was made subject. The N. Lapham Co. was the name under which Mr. Charles C. Lapham was doing business as was known both by Myers & Manning and by the plaintiff himself. The trial court correctly held, we think, that the plaintiff had notice of whatever rights the defendant had under this contract, or at least notice of sufficient facts to put him upon his inquiry. It appears that in addition to this land contract there had been a contract between Myers & Manning and the N. Lapham Co., by which Myers & Manning were to work into barrelheads certain timber belonging to the defendant. It seems clear, however, that this contract cannot be the one referred to in the chattel mortgage. It has too remote a bearing upon the title to the machinery. The only reasonable inference is that the contract referred to in the chattel mortgage was the land contract in question. Inquiry by the plaintiff at the time the mortgage was taken would, without doubt, have disclosed the contract in question and the rights of the defendant in the fixtures and machinery. It is difficult to see, however, how the question of notice becomes very material inasmuch' as upon the face of the chattel mortgage it appears to have been given for a precedent debt. For this error, we think, the judgment must he reversed.

AH concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.